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The rules of civil(ity) procedure

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Attorneys hold a unique position in society and have a responsibility to be peacemakers. Here’s how to do your part.

Imagine being a third-year associate and heading to your first deposition without a more senior lawyer from the firm. You’ve sat second chair countless times, led the deposition for clients with the aid of partners, written and argued dozens of motions, and now gained the self-confidence—as well as that of the firm’s partners—to go it alone.

You arrive early to the conference room, exchange pleasantries and business cards with the court reporter, and in walks opposing counsel. Instead of greeting you with professionalism and shoring up the remaining details of what lies ahead, he asks where opposing counsel is. When you assure him it’s going to be you and you alone today, he says that can’t be the case because you look to be the same age as his children—who are in middle school.

My personal version of that involved participating in a pro bono event at a community center, where a statewide elected official asked me if the teddy bears in the room were mine. (They were there to entertain the children of the citizens we were serving that day.)

The stats are sad

While I’m sadly well aware that there are scores of stories much worse than mine, I relate this one because it seems that most of my young lawyer friends have experienced something similar in their first few years of practice.

Indeed, the statistics support my anecdotal experiences.

In the past few years, there has been renewed attention to bullying in the profession and, unfortunately, young lawyers—and particularly women—are the most common victims of this unacceptable behavior. In 2018, the International Bar Association and Acritas conducted the largest-ever global survey on bullying and sexual harassment in the profession, Us Too? Perhaps unsurprisingly, it found that young lawyers were disproportionately bullied at work, with as many as 33 percent of lawyers under the age of 25 reporting they’d been bullied at work in the last year.

Where does this inappropriate behavior begin? As a profession, we seem to draw a large share of Type A and otherwise competitive people. Add to that the adversarial nature of our work and clients who’ve usually turned to litigation as a last resort, and you get a marketplace full of people advertising themselves as “fighters” and “bulldogs.”

For what it’s worth, I don’t think it helps that TV and movies have convinced the public—including aspiring lawyers—that the hallmark of a skilled lawyer is a devastatingly snarky one-liner. Of course, they could be forgiven for this when some of the country’s most famous jurists also have a reputation for withering remarks. As a tamer example, in King v. Burwell, in one of his signature scathing dissents, Justice Antonin Scalia referred to the majority opinion’s reasoning as “pure applesauce.”

The reality is that, although there are a lot of lawyers in this country, the profession has a way of feeling small— and your success will be very closely tied to your reputation.

You’ll inevitably find yourself working with many of the same names and faces, whether they’re opposing counsel, judges, arbitrators or other neutrals, or members of the local bar association.

Let me be clear: Being courteous and professional isn’t just the right thing to do. It will also make you a better lawyer, increase the esteem of your colleagues, raise the profile of your reputation, and result in a less stressful and more successful career.

Because of that, I thought it might be helpful to offer some tips on how to avoid the pitfalls of incivility and start your career off on the right foot.

Set the tone

Speaking of starting off on the right foot, whenever I meet new opposing counsel, whether in person, through email, or over the phone, I always do my best to set the tone for the interactions ahead. I tell them that I understand that we’re probably going to disagree over some key points. I also state that it’s my goal to remain professional, honest, and transparent. And I encourage them to bring it to my immediate attention if they think I’m not holding up my end of the bargain.

Admittedly, this can feel awkward the first few times you do it, but I can tell you that I’ve never had opposing counsel react negatively to this.

Instead, I’m almost always told the same things in return because, at the end of the day, who wants to make an already-contentious proceeding tougher than it needs to be?

This also has the added benefit of taking the temperature of your opposing counsel at the outset. If they do react negatively to your efforts, that’s probably a sign of what’s to come—and you can alert your co-workers and client accordingly.

Additionally, you’ve also signaled to opposing counsel that you’re a reasonable and diligent person. This has many great benefits. For starters, opposing counsel is more likely to give more weight to your legal arguments and perspectives if they think you’re reasonable.

And if you find that you need an extension, they’ll see the request as coming from someone diligent.

Now add communication

If setting the tone is the accord, then communication is the satisfaction. There are many components to communication, but for our purposes, the main two are diligence and content.

Is there any better way to annoy colleagues than to ignore their communications?

I doubt it. There will be days when you can’t promptly respond to a communication—whether it’s an email or a voicemail—but a good out-of- office message goes a long way in tempering expectations. A decent relationship with opposing counsel can quickly go off the rails if they feel like you’re not adequately responding to their requests, especially if it’s something important, such as discovery or a request for an extension.

You may already know this now, but just in case, I’ll warn you: In your future legal career, you’ll see many court documents that will make you ask, “How is this person an attorney?”

You’ll see briefs so poorly written they would incur the wrath of the most sympathetic high school English teacher. You’ll see responses to interrogatories that have no foundation in reality, and you’ll see legal analysis that beggars the imagination.

I beseech you to resist the temptation to channel your inner Scalia. While it’s important to bring attention to opposing counsel’s errors, do so in a straightforward way without derision. If the filings are so bad that you think they deserve a snarky flourish, that means the judge is sure to see opposing counsel’s failings as well.

You’ll be better off dispassionately acknowledging them and maintaining your dignity.

Show your empathy

This is perhaps the most difficult of these pieces of advice—especially for lawyers. There has been a great recognition in the business world that a high level of emotional intelligence—sometimes called EQ—is more valuable in management than a high IQ.

While the ability to empathize is only one part of emotional intelligence, it’s typically the largest stumbling block for lawyers.

As a profession, we prefer analysis to emotion. A landmark 1993 study found 78 percent of lawyers self-identified as “thinking” types, compared to 22 percent identifying as “feeling” types.

Much like civility in general, practicing to improve your empathy is not only the right thing to do, it will make you a better lawyer. As attorneys, much of our work boils down to problem solving. Whether it’s a contract dispute or a divorce, what we’re really trying to do is to get the parties to see eye to eye based on the facts and the law surrounding them.

It’s a lot easier to see eye to eye when you can put yourself in someone else’s shoes. It’s also going to help you keep the peace with opposing counsel if you do your best to understand where they’re coming from.

Speaking of peacekeeping

Now that we’ve just completed one of the most contentious elections ever, I’m excited to have the ABA Young Lawyers Division renew and keep a sustained focus on civility. As attorneys, we hold a unique position in society to be conveners and peacemakers.

And in my opinion, we don’t just have the skills to make peace, we have the responsibility to do so.

Think of some of history’s greatest peacemakers: Abraham Lincoln, Mohandas Gandhi, and Nelson Mandela.

Each of these men led their countries through perilous times of division, and among the many characteristics they shared, all three were lawyers. In my opinion, that’s not a coincidence.

As a society, and to some extent, as a profession, we talk a lot about civility, but that can mean something different to everyone. And to be fair, there are reasonable people who think there are certain situations that call for a course of action that may not be perceived as civil. That’s precisely why the YLD wanted to provide its members with practical tools to cultivate civility in a meaningful way.

For instance, what can you do to keep the peace in your day-to-day work? Keep an eye out for an upcoming YLD podcast with Heidi Brown, author of The Introverted Lawyer and Untangling Fear in Lawyering in which
she’ll offer tips for defusing bullies in the workplace.

Like anything else, responding to an incident of extreme unprofessionalism is a skill that’s not naturally inherent to many of us, but it can be practiced. Being bullied at work or in the courtroom can be jarring for many reasons, not the least that it’s emotionally upsetting and intellectually confusing to be rudely attacked by a colleague who has sworn to uphold a code of ethics and professionalism.

The YLD is putting together additional resources to help you start 2021 off right, with timely discussions about civility, conversations about mental health during times of racial unrest, and much more. Bookmark this page to be first to see resources and programming on civility, wellness, and emotional intelligence.

Christopher Brown Christopher Brown is the deputy law director for his hometown, the City of Mansfield, Ohio. He’s primarily engaged in civil matters but sometimes assists with criminal prosecutions. He’s the current chair of the ABA Young Lawyers Division.