Where Has Civility Gone?
The Preamble to the Michigan Rules of Professional Conduct states that a
“lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials.”
Respect for the legal system, judges and public officials? Sure, okay. No problem. Then why is it that there is such a lack of respect for other lawyers? I don’t know if it is the ability to send off snarky emails in a flash on smartphones or if there is some sort of bad rash of delusions of grandeur, but there appears to be an outbreak of disrespectful and unprofessional behavior among our peers lately.
Here are a few tips on how to deal with it:
Stay focused on your client and your case. Know the law and stick to the facts. Don’t take it personally. Your feelings and your ego come second to your client’s best interests. This is easy to say and often hard to put into practice. When someone insults you, your natural response is to defend yourself. Don’t do it. If you stay focused on your case, your client and their best interests, it will be easier to deflect the insults and sophomoric jabs.
Don’t engage at their level. When dealing with difficult opposing counsel, it is best to adhere to your mother’s wise advice that “if you don’t have anything nice to say, don’t say anything at all.” Not every email requires a response. In fact, most don’t. The best response is often none at all. If opposing counsel is in the middle of a phone tirade, trying to invoke a response from you, say nothing. Then, kindly state that you refuse to communicate in this manner and that any communication from that point forward must be in writing.
Warn your client. It is our duty to communicate with our client and they should know when opposing counsel’s behavior is challenging. Oftentimes, dealing with unreasonable opposing counsel can involve time-consuming motions to compel or motions for sanctions and your client needs to be prepared that this extra time might be reflected in your bill.
Warn your staff. Your staff are often your gatekeepers. They need to be advised when you have a problematic lawyer on your hands. They should be advised that they are not expected to tolerate disrespectful or unprofessional behavior and should be cautioned to document everything.
At all times, be respectful and professional. Be reasonable and extend courtesies when you can. In fact, be extraordinarily kind and flexible. Typically, outrageous opponents are just trying to get under your skin and see it as having an advantage over you. Resist the urge to respond in kind. If you do, not only do you sink to their level but you lose integrity while doing so.
Document everything. Send follow-up emails after phone calls. When necessary, write professional letters, documenting your opposing counsel’s behavior, misrepresentations or improper handling of the case, creating a paper trail that can eventually be attached to a motion or brief, if necessary.
Don’t involve the judge until it is necessary. Judges don’t have the time or patience to break up your fights with opposing counsel. Pick your battles. Not every interaction with opposing counsel needs to turn to hostile. Write well-reasoned motions and briefs, highlighting the opposing party’s misrepresentations (not the opposing counsel’s). Calling out another attorney in a pleading is a low blow, easily avoidable and diminishes your credibility.
Don’t play games. Stay cool, calm and collected and win the case.