Back to Basics: the 5 Cs

Katherine Mikkelson

What does it take to be a good lawyer? If you answered, “knowledge of a substantive area of the law,” you are only half-right. Of course, competence is paramount, but what about some of the soft skills, those personal attributes that allow us to effectively interact with others? Basic skills, like playing well with others and telling the truth are vital. Read on to learn how the 5Cs: competence, civility, curiosity, credibility, and confidence can improve your practice. 

Competence

Just what does it mean to be a competent lawyer? To find the answer, we need to look no further than the ABA Model Rules of Professional Conduct for guidance. Model Rule 1.1 – Competence, states that “Competent representation requires legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Comment [1] explains this further, stating that the relevant factors in determining whether a lawyer has the requisite knowledge and skills include:

  • the relative complexity and specialized nature of the matter
  • the lawyer’s general experience
  • the lawyer’s training and experience in the field in question, and
  • the preparation and study the lawyer is able to give to the matter.  

The Honorable Susan Burke, Hennepin County (Minnesota) District Court, believes that competence is more than just the bare minimum of capability. “To be competent does not mean to be average, it means you excel at what you are doing. Competence is recognized easily and immediately. It requires time, effort, practice and a commitment to constantly improve,” she said. “Competence comes from a passion and love of what you are doing and a commitment to excellence. Once you demonstrate you are competent, people will want to work with and for you.”

Comment [8] of the Model Rule 1.1 discusses maintaining competence. “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.”  

To Jackie Hallinan, Deputy Attorney General in the Workers Compensation Litigation Division, in the Office of the West Virginia Attorney General, the importance of Comment [8] is clear. “An aspect of developing competence in our profession is the building of confidence through reading, working with colleagues, and most of all attending continuing education seminars whenever available to broaden knowledge of your practice areas,” she said. Hallinan especially urges new lawyers to get training, both through formal CLE courses and on-the-job training with an experienced attorney. “It’s the only way [attorneys] can develop into the capable lawyers they want to become.”

Civility

As General Counsel for the State Bar of Georgia, Paula Frederick sees her share of incivility complaints against lawyers. Although there is no consensus on what defines incivility, Frederick believes that zealous representation can cross the line at some point. “Clearly there is no call for ad hominem attacks,” she said. “If you are discussing the merits of a case with opposing counsel and the language becomes belittling, vulgar, or abusive, there’s a problem.”

The ABA Model Rules does not specifically mention the word civility but several rules allude to it. For example, Model Rule 8.4 – Misconduct, includes conduct that “is prejudicial to the administration of justice.” Additionally, Comment [1] of Model Rule 1.3 – Diligence, states, “The lawyer's duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.”  

At least one state has a specific ethic rule that prohibits uncivil or discourteous behavior, (Michigan ) and many more have enacted civility codes, oaths or standards (see for example, California, District of Columbia, Florida, Pennsylvania, Utah). 

However, even if your state does not have guidance, it behooves you to play nice. Take it from Chuck Stertz, Outagamie County (Wisconsin) Assistant District Attorney, who thinks you can catch more flies with honey than vinegar. “It’s easy to get caught up in your client’s emotions on a case. Losing perspective and taking your frustrations out on opposing counsel never helps your client. Remember that opposing counsel is representing their client’s position, not necessarily their own opinion,” he said.

Likewise, Wendy Muchman, Chief of Litigation and Professional Education for the Illinois Attorney Registration and Disciplinary Commission, believes that sometimes the best way to beat incivility is with utter tact and restraint. She recalls a deposition, early in her career where opposing counsel yelled, name-called, and pointed a finger in her face. “My tactic with him was to get quieter and quieter as he became more and more disruptive. Of course, I indicated his behavior for the record, I wasn’t going to let it go without comment,” she said. “I also took several breaks, indicating on the record that we were breaking so that counsel could compose himself.” Muchman notes that the attorney did settle down, but he never apologized. “If you are ever in a situation where things begin to get heated, try lowering the volume of your voice and/or take a break. You might just hit the re-set button so that everyone can politely and courteously continue.”

Stertz, who has been a prosecutor for 9 years, finds that when negotiations are conducted with a mutually professional and friendly demeanor, it becomes much easier for he and opposing counsel to reach consensus. “Rancor almost always results in hurt feelings, leaving both parties in a much tougher negotiating position. And when incivility is displayed in a courtroom setting, the judge and jury lose respect for the offending party and discredit that party’s position,” he said. “So it’s important to mind your manners, even — and especially — when you’d rather not!”


Curiosity

Albert Einstein once said, “I have no special talent. I am only passionately curious.” Our profession has a tendency to make someone feel that they have to know everything, and that they have to get every answer correct, right away. Regina L. Nassen, Deputy Pima County Attorney (Arizona), thinks that this is unfortunate, because a person who buys into this thinking soon believes that she does know everything and she is always right — any other belief creates way too much cognitive dissonance. “But good lawyers aren’t good because they already know everything; they’re good because they’re good at figuring it out,” she said.

Stephanie Shark, an attorney and special agent with the federal government, reiterates Nassen’s philosophy. According to Shark, a smart lawyer learns how to ask open ended questions without judgment. “There is a finesse in curiosity, a possibility of learning from those who think differently from you. Attempting to understand why someone acted in a certain way has led to confessions, proof of intent, or acknowledgment of misunderstandings or facts to support your case,” she said. “Having curiosity means you acknowledge there is a world of information that could benefit you, or your client, if you choose to listen.”

Pima County’s Nassen believes that good lawyers are not just willing to learn more; they are eager to do so. “A good lawyer is one who finds exploring the law endlessly fascinating, even though the process involves a certain amount of floundering about,” she said. Nassen thinks that those who are uncomfortable with and avoid the struggle will have a harder time than those who embrace the unfamiliar. “Stay passionate, stay engaged, stay curious.”


Credibility

Like civility, several of the ABA Model Rules allude to credibility. Model Rule 3.1 – Meritorious Claims and Contentions, states that a “lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous.” Model Rule 3.3 – Candor Towards the Tribunal, states that a lawyer shall not make a false statement of material fact or law, or offer evidence the lawyer knows to be false. Model Rule 3.4 – Fairness to Opposing Party and Counsel, prohibits lawyers from altering, destroying or concealing evidence, making frivolous discovery requests, or alluding at trial, to any matter that the lawyer does not reasonably believe is relevant. Model Rule 3.8 – Special Responsibilities of a Prosecutor, states that a prosecutor shall refrain from bringing a case that the prosecutor knows is not supported by probable cause. The rule also sets forth obligations when the prosecutor has exculpatory evidence, or new evidence once the defendant is convicted. Lastly, and probably most on point is Model Rule 4.1 – Truthfulness in Statements to Others. This rule prohibits a lawyer from making a false statement of material fact or law, or not disclosing a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client.

We can all agree that lying is one thing, and stretching the truth or puffing is another. Michelle Garcia, a prosecutor in Santa Fe, New Mexico, reasons that the latter is a slippery slope that lawyers should not try. “I have seen attorneys attempt to stretch the truth and ultimately harm their case because they chose to misrepresent something that was easily verified by opposing counsel or a judge,” she said. “If there is one thing that I place absolute trust in during the pendency of a case, it’s that the court and defense counsel will put in the extra time to double check what I’m alleging in argument or briefing.”

Credibility is the key to building relationships with clients, judges and colleagues according to M. Teresa Schmiedeler, Esq., Director of Public Service Programs & Outreach at the University of Maryland Carey School of Law. Schmiedeler advises her law students and alumni that a successful practice of law entails paying attention to the little things. “Attention to detail and embracing a work ethic that focuses on producing quality work must be a normal course of habit for all attorneys, especially new attorneys establishing a professional reputation,” she said.

And what about honest mistakes? Schmiedeler acknowledges that slip-ups and blunders are bound to happen. “It is important to understand that we all make mistakes but to maintain credibility with your supervisors, colleagues and community, own your mistakes and move forward in a spirit of being a lifelong learner.”


Confidence

Just look at the self-help section in a bookstore or online and you will see scores of titles on obtaining confidence. But how to become confident if you are lacking in this department? Perhaps take a cue from social psychologist Ann Cuddy who has given a TED Talk on this very question. Cuddy’s theory is that non-verbal communication can affect how confident we perceive ourselves and how others perceive us. Cuddy’s research indicates that taking a power stance (hands on hips, legs spread apart, chest out — think Wonder Woman or Superman) before an interview or important meeting improves confidence both for the participants and those who observe them.

J. Todd Hedgepeth, Director of the Texas Labor Law Field Support Center for the U.S. Air Force believes that exhibiting confidence is sometimes easier said than done. “Have confidence in yourself, or at least give the impression that you do to your client. If your client perceives that you are not confident in the advice you are providing, then the attorney-client relationship is pretty much already broken,” he said.

Hedgepeth also has advice for young attorneys whose confidence may wane in the face of disappointing set backs. “When you lose your first case, you need to realize that in the overwhelming majority of all trials, it is the facts (and the rulings of the judge) that result in the outcome, not, say, the incredible closing argument by the lawyer,” he said. “As an attorney you have to play the hand that you are served, and as long as you know you did your best, and represented your client to the best of your ability, you should remain as confident as you were prior to the hearing.”

James M. Durant III, Chief Counsel of the U.S. Department of Energy, Office of Science, echoes Hedgepeth’s thinking. “Don’t worry about losing a case, being embarrassed or feeling ridiculed. This can be more damning than the failure itself,” he said. “Self-confidence speaks to others about your soul and the very fiber of your existence, it is how others describe you when you are not in the room. Clients seek attorneys who exude confidence and ability.”

Conclusion

The practice of law is just that, a practice. The 5Cs: competence, civility, curiosity, credibility, and confidence can be learned or improved upon no matter if you are a recent grad or a grizzled veteran.


Katherine Mikkelson is the Division’s associate director. The views of the contributors are personal and do not reflect their respective agencies’ policies or positions.
 

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