Civility in the Legal Practice: Practical Tips

  • 16 juillet 2014
  • Ron Profit

Toutes nos excuses. Cet article n'est disponible qu'en anglais.

 

Table of Contents

  1. Introduction
  2. Courtesy to the Rude Lawyer
  3. Courtesy to the Stupid Lawyer
  4. Colleagiality
  5. Courtesy in the Courtroom
  6. Courtesy Before Client and Public
  7. Good Practice Habits Encourage Civility
  8. This is My Job, Not My Life

1. Introduction

There seems to be an increasing need, expectation and emphasis on civility in our legal practice - - by our fellow lawyers, clients and the public. There is also an expectation, a demand by clients that from the beginning of their file we advocate fully, forcefully, fearlessly and sometimes fiercely on their behalf. To be civil, calm and courteous is seen by some clients and opposing counsel as cowardly, conceding, too cooperative and sometimes negligent. Mixed in with these often conflicting expectations of the lawyer is the attempt to limit the legal cost - - is the cost increased by taking a forceful adversarial approach, or is the cost increased by taking a civil, calm and courteous approach? Are there times on a file to be civil – for instance, at the outset? Are there times on the file to be the forceful adversary, the attack dog – for instance, upon attending Court?

These often conflicting needs, expectations and demands, and the often confusing roles between advocating fiercely and problem solving, lead to a great deal of stress being placed on lawyers to do what is right and best in the circumstances. The tension between being civil and being a forceful and fierce advocate is one more stress added to the many other aspects of our legal profession that cause stress - - pressure of billable hours; pressure to collect fees; long hours; the detailed and exacting nature of our work accompanied by severe consequences if performed otherwise; increasingly, the expectation of a quick turn around; conflicted and sometimes emotionally disturbed clients; files which often involve the most troubling of human emotions; and an adversarial environment where a fellow lawyer is paid to attack you and your client, to try to prove you wrong and sometimes stupid, all in front of your client who is expected to pay you for your brilliance, abilities and advocacy. With all of these demands and concerns, or balls in the air, I sure can use stressbuster tips and I sure am finding the need to place more emphasis on the “civil” in civil litigation.

I have been helped by many in our profession towards a less stressful, more civil and thus more rewarding legal practice – by their example, personal reflections, advice. All I need to do is listen, observe, note, remind myself and to use the practical tips to alleviate stress and to encourage civility in our work. This is not always so simple.

Some tips on civility apply to settlement negotiations; some to office or firm practice; some to the preparation and attendance at Court; and some to our personal lifestyle and behavior choices. Many tips on civility have universal appeal, and some help a few. Many tips really, really help me; and some do little for me. Many tips I have always used, and some never even occurred to me – and yet make so much sense, I wonder how I missed them.

Here are some tips on putting civility into our legal practice:

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2. Courtesy to Rude Lawyer

Maintain courtesy and show respect for fellow lawyers, for the profession, for clients and for yourself:

  1. No-Adversarial - Remove the adversarial tone. "Kill with kindness" the difficult or rude lawyer. Use politeness and/or humour to respond to snotty letters and to problem clients ("Thank you for…"). Striking back and anger are self-destructive and counter productive; and can cause burnout.
  2. Silence - Use a long pause when fellow counsel's tirade ends. Let their voice echo off the walls or over the phone. Avoid temptation to snap back. Count to ten. Say a prayer. Know when to remain quiet - sometimes what you do not say is more important than what you do say.
  3. Talk Softer - As fellow counsel elevates their pitch and loudness, do the opposite.
  4. Apologize - Take responsibility and appropriately apologize when you have done or said something wrong. Apologize if 24 hours later you are still justifying to yourself your behavior. Apologies are impressive and nurture serenity.
  5. Manage Feelings - Do not sweat the small stuff. Maintain perspective. Manage feelings so they are expressed appropriately and effectively. Post "Do not take it personally" on the fridge, work desk and Court notepad.
  6. No Resentment - Rid yourself of resentment. Resentment is a burden that causes burnout or a rage response to nothing or to minor incidents.
  7. I Like You - Preserve relationships with fellow lawyers.
  8. Humour/Laughter - Create, invite and nurture humour/laughter as effective tools in your practice and personal life. Tell the attack-dog-lawyer, "I showed your letter to my mom and she says you're bad".
  9. Be Positive - Focus, inquire and comment upon positive aspects or interests of your fellow lawyers.
  10. Why Me? - Ask the rude lawyer, why the behavior? State, "You and I need to work out our relationship problem for our clients and because we have more years together".
  11. In Person - Meet fellow counsel in person more. It is harder to be rude in person than on the phone or in a letter. Set up appointments at their office.
  12. No Personal in Letters - In letters to opposing counsel, never state, "I..." or "you...". It is better to state, "My client (or Mr. or Ms.) states…". At most state, "I (we) suggest…", or "It is my (our) perspective…"; but, make the effort to avoid these statements.
  13. Flattery - Disarm rudeness with flattery and compliments. You may even get referrals.

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3. Courtesy to the Stupid Lawyer

  1. Courtesy - When you see inexperienced counsel, be courteous and helpful (aside from preparation of their case). Gently inform them privately of their error or mistake.
  2. Respect - Opposing lawyers often use incivility to camouflage insecurity or lack of preparation. Treating such lawyers nonetheless with enormous respect and civility, will create a friend for life and civility on future cases.

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4. Colleagiality

  1. Lunch On Me - Take fellow counsel to lunch, including the difficult or rude counsel.
  2. Buddy Lawyer - Have a "buddy" lawyer, inside or outside your firm and possibly in your area of practice, to discuss difficult lawyers, difficult files and anxieties.
  3. Mentoring - Establish a mentoring relationship with a lawyer, inside or outside your firm.

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5. Courtesy in the Courtroom

  1. Robes and Titles - Keep the robes, titles and formalities. These add decorum and respect, and lessen personal conflict.
  2. No Media - Courtroom cameras add to the lack of decorum, to the showmanship and to the personalizing of the Courtroom experience. This has also occurred in Parliaments and Legislatures.
  3. Judges Like Civility - Most, if not all Judges, respect the courteous, civil and calm counsel operating in the presence of the rude, raging and righteous counsel. Further and as in hockey, Judges often see and are more likely to penalize the retaliatory strike.
  4. Judges Must Show Respect - Judges must never demonstrate disrespect or rudeness toward legal counsel or to the parties, or civility is impossible.
  5. Judges Must Have Control - For civility to reign supreme, Judges must demand and insist on civility; and reprimand and stop short displays of incivility.
  6. Humour - If fellow counsel is raging at you unchecked by the Judge, with a smile duck behind your podium, or state "I assume I am off your Christmas card list", or do some other humourous posturing or comment. If fellow counsel is raging at your client unchecked by the Judge, object.
  7. Administration of Justice - Keep in mind that the level of civility in Court reflects greatly on the client's and public's perception of justice.
  8. Don't Play Hollywood - Hollywood often glamorizes and promotes winning the case through rudeness and incivility in our profession. Some lawyers use as their models or mentors, television lawyers. Avoid movies, books and jokes which promote rude and disrespectful displays in the Courtroom and in the legal practice. Consider what image of the lawyer do we have, wish to have and wish to promote?
  9. Courtesy is Bottom Line - It all comes down to addressing with courtesy opposing counsel, the presiding Judge and the opposing party, even when you lack respect for any one of them.

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6. Courtesy Before Client and Public

  1. Be Proud - Be proud and show pride to clients and public about your practice, profession and fellow laywers.
  2. Zip Up - Do not badmouth or ridicule fellow lawyers to your clients or public.
  3. No Jokes - Do not partake in jokes about lawyers.
  4. Image - Keep in mind that the courtesy and civility displayed in your office reflects greatly on the client's perception of justice.

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7. Good Practice Habits Encourage Civility

Good practice habits and managing work hours encourage civility.

  1. Return Phone Calls - Return on the same workday all calls.
  2. Respond to Letters - Respond to letters as early as possible and within one week, even if it is to state how much longer you will need.
  3. No Obligation Consultations - Do a no obligation introductory consultation for a set fee. A client which demands unreasonable confrontation or an attack dog for a lawyer should be dropped at the first meeting.
  4. Drop Kick Files - Practice how to, and then say, "no" to clients demanding incivility from you, whether at the outset or well into the file.
  5. "I'm Out of Here" - Spontaneously take the day or afternoon off to get rested or to take a break from the turmoil.
  6. Realism -Set realistic expectations of yourself and others.
  7. Your Nasty Letters - Post for 48 hours nasty letters you have constructed, and then garbage or file them away.
  8. Morning Meetings - Schedule morning meetings with fellow lawyers and with clients - at least for the difficult ones.
  9. Honesty/Candor - Treat fellow lawyers with honesty and candor.

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8. This Is My Job, Not My Life

Remind yourself to keep balance and to keep in proper priority your commitments in life - commitments to yourself, your spouse, your children, your extended family, your employment and your friends. With balance and proper prioritization of your commitments, you will have less stress and less temptation towards incivility.

Keep Perspective

  1. Comments - Comments and kind words to remind yourself and fellow lawyers who may be going over the edge, that this is just a job:
    • "Wow, you must have a good retainer on this file"
    • "Boy, aren't you glad this is not our life"
    • "On this file, I'll grovel and do what you want. Next time, you grovel"
    • "Are you o.k. on this file"?
  2. Practices - Practices to remind fellow lawyers and yourself that this is just a job:
    • Have in-office meetings.
    • Have lunch on the legal matter.
    • Remind them that this contentious matter is not going to effect our relationship on other files.
    • Contact them to apologize or to state that the adversity on this file is not personal.
    • Inform them that (because on the confrontation level) you have to end this call and you can speak to the matter later.

Manage Hours

  1. 12 Hour Break - Ensure 12 hours between work days.
  2. Lunch Break - Schedule a lunch break everyday away from the office, and with lighthearted people.
  3. Your Hours - Work hours natural for you. If a naturally late riser, do not fight it - begin your day late.
  4. Part-Time - If other commitments and interests make part-time work best, i.e. 3 day work-weeks or 5 hour days, then go for it. Find or start the practice that allows you part-time work.
  5. No Work Home - Keep your work and files at the office.
  6. Free Weekends - Work weekdays. Leave weekends for fun, frolic, fantasizing, family, friends and fitness.

Family

  1. Nurture Relationships - Take the time, and capture the opportunities to nurture your family relationships. It is family that will be there for you and affect you the most, now and in your later years. Enjoy your children. Set a good example by providing time.
  2. Family Time - Schedule family time in your office scheduler. Do not schedule or allow business phone calls or meetings at home. Keep your work and files at the office.
  3. Meals with Loved Ones - Schedule everything around the one daily meal with family members or those close to you.
  4. Unlisted - Provide clients with your business (not home) phone number and business address. Keep your home address out of the phone book. The client that calls you at home, seldom pays.

Friends

  1. Positive/Enthusiastic - Associate with positive enthusiastic people, inside and outside business. Avoid "doom and gloom" and "stressed-out" people.
  2. Confidential Group - Join or form a group where sharing occurs and confidences are kept, and meet regularly.
  3. Service Clubs/Fun Groups - Join a service club or fun group for fellowship and service. Do not overdo it. Stay away from Boards.

Fitness (Fun & Frolic)

  1. Physical
    • Exercise 30 minutes or more daily (not too much).
    • Sleep 7 hours or more daily, and take mid-day snoozes.
    • Eat the right quantity and quality of food.
    • Get massages and give massages.
    • Know your addictions, inherited or otherwise, and surrender and get help (call LPAC at 1-800-667-5722).
  2. Emotional
    • Keep handy a book or cartoons (no lawyer stories).
    • See a movie involving romance, escapism or lightheartedness (no lawyer movies).
    • Be involved in, look for and create humour; and laugh a lot (no lawyer jokes).
    • Do not talk work outside business hours, unless for therapy (no lawyer bashing).
    • Play your music, recorded or instruments.
    • Sing, dance - with reckless abandon.
    • Have no regrets, misgivings, guilt; and accept you did the best at the time.
    • Know that the ones with their act together are the ones that have gotten counselling for their troubles.

Spiritual

  1. Be Alone - Take yourself away from work, responsibilities and commitments, and do absolutely nothing. Go to a quiet place (i.e. church, stream). Reflect. Go on a retreat.
  2. Fantasize & Frolic - Understand the breadth of your horizon, your options and your opportunities. You have strived much to become a lawyer. Do not now put blinders on. Take the steps and changes to fulfil your dreams.
  3. Soul - Daily nurture your soul, your spirit, the seed inside you. Whatever your religion or faith, or if none, find your higher power. Say the Serenity Prayer.
  4. Life Story - Have a vision as to where you want to end up, so as to know what to avoid time on. Eliminate unnecessary activities and things (less is more). Eliminate incivility.

Not all the stated civility tips will work for you. There may be variations on them which work for you; or, there may be other tips which work for you. If so, and you permit, I may include your tips in future updates on this article for the benefit of our fellow lawyers (your name will not be included). I can be reached at (902) 629-3908, or rprofit@pphm.com, or 20 Great George Street, P.O. Box 486, Charlottetown, P.E.I., C1A 7L1.

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Ron Profit practices law at Charlottetown, P.E.I.