Practicing with Civility

Jackson Waste

Recently, I took a deposition during which the opposing lawyer waved his finger in my face and yelled at me to shut up, adding a few other choice details that I needn't repeat here. My crime, so to speak, was asking him to stop making speaking objections. In an effort to take the proverbial high road, I chose not to respond by telling him that he looked like a partially microwaved Steve Mnuchin action figure—despite the fact that he did look like a partially microwaved Steve Mnuchin action figure. Which brings us to the topic of civility.

It's an unfortunately common misconception that zealous advocacy requires us to practice law with the disposition of a rabid wolverine suffering from methadone withdrawal. As the California Court of Appeal has stated, “zealous advocacy does not equate with ‘attack dog’ or ‘scorched earth,’ nor does it mean lack of civility.”

Don't get me wrong: Law can be a frustrating profession, and unless you're the Dalai Lama, you've probably been tempted to fly off the handle a few times. But maintaining a sense of civility even when it's hard is about more than just doing the right thing. It offers distinct advantages that redound not just to your clients' benefits but also to yours.

For one thing, you avoid the pitfalls that rabid-wolverine-style lawyering can create. If you find yourself needing a discovery extension, opposing counsel will be infinitely more likely to do you that courtesy if you've treated her courteously. It might be satisfying to fire off an expletive-laden email likening opposing counsel to a less-intelligent Zodiac Killer, but you can bet that email will be attached to a declaration and find its way in front of your judge, who isn't likely to be impressed. It doesn't even take over-the-top hostile behavior to land you in hot water with a court: One California court recently imposed sanctions against a defendant for, among other things, defense counsel's condescending remarks during a meet-and-confer process that the opposing counsel wasn't making a good-faith effort to resolve a discovery dispute.

Practicing with civility is, at least arguably, an ethical requirement of the profession. Comment 1 to ABA Model Rule 1.3 provides that "[t]he 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." But, more than that, it has its own advantages. Many lawyers find that opposing attorneys end up being good referral sources down the line. And you never know when you'll want to change firms or need a favor. Building bridges is always better than burning them.

So, while it's not always easy to practice civility, it is always the best choice. Here are a few tips that may help:

  1. Try to meet with opposing counsel in person at the beginning of a new case. Not only does it help to potentially facilitate settlement and smoother discovery, but it also helps the attorneys work more effectively with one another. It's harder to fire off that 12- paragraph-long angry email when you've gone out for a beer with the recipient. When you know about someone's life, family, hobbies, and pets, you're more likely to view that person as a fellow human being instead of a faceless adversary.
  2. When you have to deal with an attorney who simply won't—or can't—practice civilly, schedule your calls in the morning and don't respond to their emails late at night. You're more likely to keep your cool when you're fresh, and you're more likely to blow your top when you're feeling tired and worn out.
  3. Have an outlet. No matter what we do, stress is going to build up. Instead of venting your frustrations on other members of the Bar, develop a healthy way to blow off steam, such as running, lifting weights, or participating in underground fight clubs, the first rule of which is never to talk about fig—never mind, I've said too much already.
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Jackson Waste

Jackson Waste is an attorney at Baker Manock & Jensen, PC, in Fresno, California.