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How are our law schools doing about teaching about civility and professionalism? Are you seeing any significant changes in that area with our younger associates?
BATEMAN: As the Bar has gotten bigger, we’re losing civility. I see more briefs that are more an attack on opposing counsel than they are an attack on opposing counsel’s argument.
The sad thing to me is I think it can stop, it can stop very quickly, but it takes the judges. I had a case where it was attack, attack, attack from the other side. Judge Waddoups politely stopped him once. The second time he said, “Counsel, do you understand you’re not helping your client’s case when you engage in such conduct?” And it stopped. If the judges would do that, it would go away.
CLYDE: It depends a little on what kind of practice you have. Litigation is becoming less and less personal.
In my very narrow area in water law, there are probably a dozen of us that do this routinely. We’re all good friends. On any given day we’re on the same side of the case or opposing each other. We get things accomplished. And things do not get personal because we maintain those kinds of relationships. You can’t do that when you’re fragmented with thousands of lawyers out there. So it really is a function of the kind of work you do and the number of people you interact with.
TOMSIC: The thing that I’ve been surprised at, because the Bar has been focused on civility and professionalism, is how little of that is taught at law school. My experience with young lawyers is they really can’t discern the difference between good advocacy, rudeness and polemics. It is really important for all of us, as we’re mentoring young lawyers, to really explain to them that you don’t do your client any good by making personal attacks using polemics to argue your case. It’s really a question of good advocacy, not rudeness.
The only thing any of us have, as a lawyer, is our reputation. Once you get judges thinking you’re not telling the truth or you’re simply attacking personally, it is very hard to earn back the respect from the bench, or from the Bar.
EVANS: When I’m mentoring one of our associates, I’ll say, “Draft this up. Let me look at it.” And if there’s what I call “nuclear tip words” in there, then we talk about why that’s a bad idea. And the same with e-mails. As the office manager, I always have to send my reminder e-mail saying, “Remember, as soon as you push send, you can’t pull it back. And your mom’s probably going to be reading it.”
RAPP: We tell our associates a couple of things. One, that an e-mail is no different than a letter, and it should have all the professionalism of a letter. And second, you always need to take a step back and say, “What is the judge going to think when he reads this letter?” If you keep thinking of it in that context, then you will soften your letters to make sure that they deal with the issues and don’t deal with extemporaneous nuclear words that will incite the other side.
BARKER: I think civility is more of an issue with older lawyers than new lawyers myself. If it’s the young lawyers who are not behaving appropriately, it’s because they’re following the lead of a more senior, overly aggressive lawyer.
DAVIES: Another thing we can do to avoid raising the cusp for our clients is to realize that sometimes we don’t have to take the bait. Somebody else does something offensive or unacceptable, and we don’t have to fight it every single time.
Have any of you formalized the use of social media in your firms? And have you seen social media impact productivity in any way?
PINEGAR: We have adopted a social media policy, and it’s had a good effect on at least reducing the amount of time that’s wasted on that. We found our lawyers were some of the worst offenders. Their excuse was, “Well, it’s my time. I’ll still get my hours in.”
LARSON: At the beginning of every year, we get all of the staff and attorneys together and review our social media policy. It’s not only a factor of wasting time in the workplace, but we really try to educate everyone about what’s appropriate and what is inappropriate with respect to using social media and talking about things that are happening at work, attorney-client communications or attorney-client privileged issues. Not discussing opposing counsel. Nothing that would reflect on the workplace or the work that’s being done.
LEITHEAD: You’ve got to be very careful because a lot of what seems like common sense to us in terms of what you can’t talk about—internally, the workings of the firm and that kind of thing—actually, according to the National Labor Relations Board, violate statute. So you’ve got to watch that balance.