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Civility

By ERIK BADIA

It’s no secret that in the eyes of the public, lawyers don’t have the best reputation. In law school, they don’t teach you how to be kind and respectful. They teach you how to dissect your opponent and win. And this makes sense, given the nature of an attorney’s role as a zealous advocate for the client.

Part of this bad reputation stems from the stereotype of the hyper-aggressive, obstinate, and overly argumentative lawyer who’ll use any means necessary to win. But not all lawyers act this way. Contrary to popular belief, an attorney can be both a zealous advocate and a respectful, civilized counselor.

Take the professional relationship of U.S. Supreme Court justices Ruth Bader Ginsburg and the late Antonin Scalia, for example. While the justices had fiercely differing political views, they were actually great friends, and the pair had vigorous and passionate debates carried out with respect and civility.

That Ginsburg-Scalia type of spirited yet civil conduct is what law professors and experienced lawyers say is the key to properly representing your client’s interests and not being a complete jerk. Here, those experts share their views, horror stories, and advice about how to straddle the line of zealous representation and civility.

The conflict of conflict

Dr. Dana Baerger, a clinical psychologist and attorney, is an assistant professor of clinical psychiatry and behavioral sciences at the Northwestern University Feinberg School of Medicine in Chicago who specializes in attorneys’ mental health. Baerger acknowledged that there’s something of a clash between being a staunch advocate and being collaborative.

“In many ways, the skills required for good lawyering are antithetical to the skills needed for good communication,” Baerger said. “Zealous advocacy demands the advocate defend a position. Argumentative positions tend to be binary: There’s a winner and a loser, and only one perspective can prevail. In contrast, good communication is by nature respectful and empathic. It requires flexibility and perspective-taking.”

Baerger said that conflict and dispute are at the core of being an attorney, so naturally, the focus in law schools is on mastering these skills.

“To the extent that communication skills are taught at all in law schools, instruction tends to focus on argument and persuasion,” she said. “But the more we defend a position, the less we listen, and the more we create gridlock around opposing viewpoints. It’s critical that attorneys learn techniques that allow them to manage disputes and solve problems without engaging in disrespectful or offensive behavior.”

A lack of professional decorum isn’t something that’s gone unnoticed by those with practical experience in the legal field. Attorneys in the trenches say being civil is more than just a courtesy. It’s also good for your clients.

When a win is a loss

An attorney’s reputation has a big impact on the attorney’s success, according to Steven T. Webster, a litigator with more than 25 years of experience. Webster started out as a public defender before moving to civil litigation and eventually starting his own firm, Webster Book LLP, in Alexandria, Va.

Webster said that the legal community is a small one, and people talk—including judges. “Word gets around, and it also gets around to judges,” stated Webster. “At a certain point, you develop a reputation that you’ve earned. If that reputation is an unfavorable one, you’ll find that in close cases, things will tend to go against you.”

Webster added, “Good lawyers in my view take a longer-term view of what it means to zealously represent a particular client. In the short term, you may be tempted to do something questionable for your client. But in the longer term, that’s not going to work out very well for all of your clients.”

Being civil and professional to your colleagues will also help you get the breaks that every attorney needs from time to time. “If a case lasts long enough, you’re probably going to run into a situation where you’re going to need a favor from the other side—an extension of time to answer dis-covery, changing the date of a deposition—because things come up,” Webster said. “At some point you’re going to need a favor. But if you’ve acted like a jerk, you’re much less likely to get that professional courtesy.”

In his experience, the worst of the bad attorney behavior Webster said he’s seen seems to creep into depositions.

“There’s no judge there to call the balls and the strikes, so the lawyers are sort of left to their own devices,” he said. “In the course of one deposition, I was called both a ‘pig’ and a ‘robot,’ and honestly, I’m not sure how that even makes sense,” Webster added with a laugh.

Webster said the legal field is a tight-knit one, and as an attorney, your reputation is all you have. “Even in a place like Washington, D.C., the legal community is a pretty small group, and you’re going to run across these people in one form or another—particularly in litigation—for the rest of your career,” he said. “It makes sense to keep it well on the side of the line that says lawyers should treat each other like adults and with respect and as professionals. But unfortunately that doesn’t always occur.”

Hands

No bad habits to learn

Jeff Kerr, a founding partner of the Atlanta law firm Mays & Kerr, did exclusively litigation work for the first five years of his legal career before starting his own litigation software company, CaseFleet. He and a friend from Emory University, John Mays, founded the firm and went into practice right out of law school. Kerr said one advantage of doing so was that he didn’t pick up any bad habits.

“I saw a lot of younger lawyers who behaved badly, and most of what they did was because they watched another, more experienced lawyer do the same thing,” said Kerr.

“Like any other profession, there are lawyers with bad habits. We got to experiment, and we avoided learning those bad habits.” Kerr has noticed two distinct types of difficult attorney behavior. “There are lawyers who’ll hang up the phone, call you names, use offensive language, and behave like children, essentially,” he said.

“And then there’s another kind that’s very sophisticated and slick, but no less difficult to deal with,” added Kerr. “This is the kind of lawyer who’s made a name for himself or herself by being extremely aggressive with opposing counsel. Often times it comes with a smile and a handshake, but later comes the threatening of sanctions against opposing counsel, sending really nasty letters, and making it very hard to work collaboratively and get anything done.”

Kerr, who did mostly employment litigation, said in the five years he practiced in the Atlanta area he saw plenty of egregious behavior. But he echoed Webster in finding that depositions often brought out the worst in his colleagues.

“I’ve had a number of occasions during depositions where lawyers became actually physically aggressive,” re-called Kerr. “No one ever threw a punch or anything, but I’ve had attorneys get in my face, curse me out, stick their hands in my face, get real macho.”

Kerr said learning from scratch showed him that not being a jerk was not only less stressful, but it was also more efficient for his clients. Like Webster, he also found his respectful behavior gave him an advantage in the courtroom.

“There was a strategy behind what I was doing because I figured the more cooperative I was, the better I’d be viewed by the judge if I ever had to go before the court for something like a motion to compel,” he said.

“The court takes note of things like that,” added Kerr. “In my experience, if you’re respectful and play by the rules, you’ll actually be a better advocate for your client.”

Taking it down a notch

David M. White, a professor at Seton Hall University School of Law in Newark, N.J., feels experiential learning is likely the best way to make an immediate impact in the area of professionalism and civility.

White is the director of the school’s conflict management program. Through a partnership with the U.S. District Court for the Southern District of New York, he runs a program where law student advocates represent federal litigants. He said classroom learning can teach students only so much.

“You can read about professional responsibility all day long, and we can talk about ethical considerations and disciplinary rules without fully contextualizing them,” he said. “But if a law student were to shadow an attorney, the student would gain an understanding of what it means to be a practicing attorney. It would take the abstraction of a case study and make it very real, very quickly.”

White, who practiced in complex civil litigation and white-collar criminal defense before becoming a full-time educator, said being civil isn’t explicitly stated anywhere in the rules.

“The civility issue is above and beyond,” he stated. “Professional responsibility is what we do as attorneys to remain in good standing before the court. Civility is what we do to ensure our reputation as professionals. It’s that higher standard of civility that’s largely lost in the profession, and it’s rarely taught before graduation.”

“Many times, particularly among younger attorneys, there’s a reluctance to act with civility,” added White. “Perhaps it’s a fear that the partner for whom they work or the client they represent will think they’re less than fully zealous. And so they feel like they have to angle for every possible advantage. Quite frankly, that’s not a necessary, nor desirable, tactic.”

White said in the nearly 15 years he’s been an attorney in the New York metro area, he’s had plenty of bad experiences. But a recent encounter during mediation where a lawyer refused to give a retired, 70-year-old librarian a break, stood out.

“After four hours of negotiation, we struck a deal to resolve the issue, and our client was very relieved,” White said. “But the [opposing] attorney for the defendant insisted my client would try to back out of the deal unless we reduced it to writing, right now, in the courthouse.”

Instead of simply getting a boilerplate agreement from his firm, as White had suggested, the defense attorney insisted on doing it from scratch. After writing out the con-tract in longhand on a yellow legal pad—two billable hours later—the other attorney said there was just one more is-sue: “Your client took out a library book and has not yet returned it,” he stated. “We will therefore reduce the settlement amount by the replacement value of the book.”

Stunned, White asked his client if she still had the book. She said she had, though she hadn’t yet finished reading it. But she promised to bring it the next day. The attorney’s response? Not good enough; pay the $5 late fine before settlement.

“Feeling my blood begin to boil, I asked defense counsel to walk with me,” White recalled. “I looked him in the eye and said, ‘Are you [expletive] kidding me?’ He said, ‘Well, your client wants to be treated the same as everyone else. That means the lending rules apply to her like every other library card holder.’”

White responded: “Here’s what we’re going to do. You’re going to forgive the $5 overdue fine, and I’m going to forget the most shameless act of bill padding I’ve ever encountered. Otherwise, you can explain to the judge why your attempt to blow up the deal resulted in the continued waste of the court’s time. Have fun with that.’”

The parties signed the settlement agreement.

“To most of us, there’s a difference between zealous advocacy and being an ass,” said White. “The distinction was lost on my fellow officer of the court.”

White offered words of advice to those about to enter the legal field: “Ours is a profession, not an industry,” he contended. “As professionals, we hold ourselves to a higher standard of civility. Most professional courtesies don’t compromise our ethical duty of zealous advocacy.

“Just because you can do something doesn’t mean you should do it,” advised White. “Karma kills. You don’t have to be an Eastern transcendentalist to appreciate the practicality of that wisdom.”

ERIK BADIA is the deputy student editor at Student Lawyer and a second-year student at Georgia State University College of Law. He was previously a journalist, most recently for The New York Daily News.

Student Lawyer Student Lawyer magazine provides guidance on educational, career, and related issues for ABA Law Student Division members and other subscribers. It is published four times a year by the Law Student Division of the American Bar Association. Student Lawyer is available online to members of the ABA Law Student Division and to print subscribers.

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