I’m a lifer. After more than two decades in the trenches, it’s safe to say lawyering isn’t a passing phase for me. And where I make my living is in our civil court system; mostly before probate judges, but not always. Which means I’m personally vested in a civil court system that doesn’t just measure outcomes, it also values “how” disputes get resolved.
And by “how” I mean the human interactions that go into doing what we do as lawyers. So what have I learned? Civility matters. And it’s not just me that says so. For a deep dive into what should be self-evident you’ll want to read Change the Culture, Change the System. Here’s an excerpt:
Judge Paul M. Warner, a U.S. magistrate judge in the District of Utah, recently wrote Ten Tips on Civility and Professionalism. He notes “It’s a long road without a turn in it. Put another way, what goes around, comes around. This is the best reason for civility.” He also suggests that incivility almost always results in wasted resources, in terms of both time and money—for lawyers, clients, and the court. Warner proposes a new Golden Rule of Civility:
“Be courteous to everyone, even to those who are rude. Not because they are ladies or gentleman, but because you are one.” It’s not about an eye for an eye, a tooth for a tooth. It’s not even about you. It is about doing what’s best for your client. In conclusion, civility is the mark of a real professional and a true lawyer. It is not about quid pro quo. It is about having self-respect, respect for others, and the self-confidence to not respond in kind, and in the process, continuing to build your own character, credibility, and reputation.
Bottom line, if you think “civility” is important, act accordingly — even if opposing counsel (or your judge) doesn’t reciprocate. It’s not a sign of weakness; it’s called maturity. And it’s what’s going to sustain us long after the “Rambo” litigator we’re dealing with in today’s case burns out or gets disbarred.
There’s another important point the authors make in Change the Culture, Change the System. If you’re a litigator, it’s easy to blame our judges for all that ails us. And if you’re a judge, blaming the lawyers is just as easy. Finger pointing is a lose-lose proposition. You want change? Take responsibility for your own actions and remember why we’re all here to begin with.
Lawyers may blame the system, the rules, the judge, and the court staff for unfairness, expense, and delay. Judges blame the rules, the lawyers, and the lack of staffing. That effort to shift blame is itself an indication of an unwillingness to take responsibility for making the system work in a cost- effective, procedurally fair way.
How the system functions is the result of how the actors within a particular case comport themselves. Those who are engaged in finger pointing are seldom visionary, innovative, and proactive. Both lawyers and judges need to remember that the system serves the litigants, who care little about the rules or case management principles; rather, they care about procedural fairness and cost-effectiveness. Lawyers and judges need to recognize the importance of procedural fairness for litigants and make it a guiding star throughout the process.
I was so impressed with Judge Warner’s Ten Tips on Civility and Professionalism, I decided to list them all below. Good stuff, very much worth holding on to.
- It’s a long road without a turn in it. Put another way, what goes around, comes around. This is the best reason for civility. Everyone needs a little extra consideration from opposing counsel occasionally. If it doesn’t prejudice your case or client, do it.
- Don’t be so concerned with winning the battle that you lose the war. In other words, sometimes lawyers can’t see the forest for the trees. Just because the other side wants it, doesn’t mean your automatic response should be to oppose it. Sometimes, it can be win-win, especially for settlement purposes. This is especially true in civil discovery disputes.
- Civil practitioners treat each other in a criminal manner, and criminal practitioners treat each other in a civil manner. The criminal bar is small, and the lawyers know they will deal with each other many times. It leads to courtesy and civility. Civil practitioners may only deal with opposing counsel one time in a career. Be civil anyway. Your reputation depends on it.
- Never mistake reasonableness for weakness. The really good lawyers can be tough as nails on the issues and zealous in their advocacy, and yet always remain civil and courteous. Strive to be one.
- When laws are not enforced, it creates contempt for the law. When rules are not enforced, it has the same effect. The rules of civil procedure and local court rules are not advisory. They need to be followed. They give order and predictability to the system, and they should be enforced by the courts.
- Waste not, want not. Incivility, and the behaviors that constitute it, almost always result in wasted resources of time and money — the lawyer’s time, the client’s money, and both time and money for the courts. Lawyers responsible for such waste should pay for it, personally!
- Know the difference between an adversary and an enemy. The lawyer on the other side is not your enemy. The clients may be “enemies,” but the opposing counsel should not be. Opposing counsel may even be your friend, or, if treated with civility and professionalism during the conduct of the case, may well become one.
- If you don’t write it or say it, you don’t have to explain it. There is power in the written word. “Poison pen” e-mails and letters feel good to write, but rarely should be sent. Outrageous language and accusations in briefs and memoranda are the functional equivalent of shouting in court. Don’t dignify such boorish behaviors by responding to them.
- Always forgive your enemies, but never forget their names. Don’t make the case personal between you and opposing counsel. Never make the mistake of getting opposing counsel’s “attention” through shoddy behavior or cheap shots. They will work nights and weekends to beat you. They are not in this business because they lack ego.
- The Golden Rule, with a twist. We all know the Golden Rule. “Do unto others….” I propose a new Golden Rule of Civility. “Be courteous to everyone, even to those who are rude. Not because they are ladies or gentlemen, but because you are one.” It’s not about an eye for an eye, a tooth for a tooth. It’s not even about you. It is about doing what’s best for your client.
In conclusion, civility is the mark of a real professional, and a true lawyer. It is not about quid pro quo. It is about having self-respect, respect for others, and the self-confidence to not respond in kind, and in the process, continuing to build your own character, credibility, and reputation.