I am going to spend the next few columns expounding on each of the areas of our theme for the year: Respect. I want to focus this quarter on respect for each other, especially in the context of litigation. As I mentioned in my last column, the theme of respect emanated from my own observations about how lawyers on opposite sides of a case relate to one another. My beliefs about how opposing lawyers should relate to one another are grounded in the lessons of my childhood. I remember that when I was a kid, my dad—who was a trial lawyer in Shreveport, Louisiana (and who has been highlighted in most of my speeches and columns this year)—used to come home and talk about some lawyer he was “trying a case with” (which is the way he referred to lawyers who were on the other side of a case from him). Shreveport was small enough that the lawyer he was talking about was usually a family friend or the father of somebody I went to school with. My dad’s observations about the other lawyer were never unflattering. He never said anything that created an unfavorable impression for me. In fact, I know that he often was a glowing source of referrals for these lawyers many years after my parents left Shreveport.
I entered law school and began my law practice with expectations of a certain level of civility and professionalism, born of my childhood experiences. So it was a considerable shock to me early in my career when a senior partner at an esteemed Texas law firm who was on the same side of a matter with me subjected me to a verbal barrage of personal insults and threats over the phone because I thought a document had been forwarded to him when it had actually been inadvertently omitted. The call left me trembling and unable to sleep for days. It was only after we settled the case that he called me to semi-apologize by saying, “I was taught that in order to be an effective litigator, you had to be an a**hole.” I wish I could say that was the last time I had such an encounter; it wasn’t. I began to wonder whether it was true that in order to be effective, I needed to be meaner, ruder, nastier. Maybe I was too nice?
After some reflection, I decided that although I thought of myself as having considerable trial skills, if those attributes were also required, I was in the wrong business . . . and that I would not adopt those traits regardless of the tone taken by the other lawyers I was dealing with. And if it ever seemed like taking this approach was a detriment to my client and its position, I would need to call it quits. I was fortunate to work closely with senior lawyers at my firm who felt the same way and made me believe it was possible to be a great trial lawyer and a decent human being as well.
So I started employing a few tricks to disarm my adversary and preclude bad behavior. I always pick up the phone and introduce myself the moment I learn the name of a lawyer on a matter. By the way, letters or emails do not have the same impact. If the other lawyer is in Houston (or if I find myself visiting the other lawyer’s city), I will take that person to lunch. If I get some sort of nasty communication before I have had a chance to do either of these things, I pick up the phone in response, try to find some common ground to talk about (e.g., a colleague or classmate we both know), and alert the other lawyer that I am still going to proceed in a courteous and professional manner. It works. I have rarely had a restless night’s sleep worrying about dealing with the other side.
About 20 years ago, I started presenting a CLE on professionalism with a specific focus on interaction with other lawyers. The good news, I think, is that fewer and fewer litigators seem to be taught the lesson that that first lawyer I encountered told me he had been taught. Regardless, I promised myself that I would take every chance I could to teach the opposite lesson—that effective advocacy can be achieved while maintaining courtesy and dignity, that litigators can disagree without being disagreeable. Respect. Live it every day! Be an example to younger lawyers! It exists only if you show it.