A 21st CENTURY RATIONALE FOR CIVILITY BETWEEN LAWYERS
The Civility Crisis
Unless you’ve spent the last twenty years meditating alone in a cave atop a Tibetan mountain, you’re aware of the civility crisis among lawyers. In his article Free Speech, Civility and Harassment in the February 1998 issue of Bench & Bar of Minnesota, Edward J. Cleary said: “There does seem to be a consensus among members of the judiciary and the legal community that incivility is rampant; that previously unheard of and unacceptable speech and acts occur with frequency.”
To stop lawyers from their all-too-frequent shows of disrespect and disdain for one another, state bar associations from California to Virginia have issued new guidelines for civil behavior among lawyers. In most cases these guidelines are voluntary and are not legally enforceable by courts through imposition of sanctions. Voluntary guidelines represent standards of decency and decorum that state bar organizations want lawyers to follow, but which they are not prepared to or able to impose on them at this time.
For a state to adopt legally enforceable rules of civil behavior for lawyers, they would not only have to secure the assent of the state bar association and the state’s highest court, but a majority of the state’s practicing lawyers would have to go along with the proposal. So far lawyers have strongly opposed making such standards mandatory on a variety of grounds. These include stifling their First Amendment right of free expression, chilling their willingness to zealously represent their clients for fear of being sanctioned and needlessly expanding their liability for legal malpractice by creating new standards of professional care. They also say that words like “offensive,” “meant to embarrass,” or “designed to humiliate” are vague and ambiguous.
The cause of the civility crisis is not a lack of laws requiring that lawyers be civil to each other or else. Indeed, yesterday’s lawyers were much more civil to one another in the complete absence of these kinds of laws. Even if civility guidelines were made mandatory, it’s not likely that lawyers would suddenly become much more civil toward each other than they are now.
There is a limit to what rules can accomplish when someone is not motivated to do what the rules prescribe. For example, federal and state courts have long had authority to sanction lawyers for bad faith conduct during litigation (e.g. FRCP Rule 11 and California Code of Civil Procedure Section 128.5). Lawyers know they shouldn’t alter, conceal or destroy evidence yet they do it anyway. Lawyers know they shouldn’t change an adverse witness’s testimony by bribing or threatening him, but they do it anyway. Lawyers know they should be respectful while speaking to a judge or speaking in public about a judge, but they say some pretty ugly and outrageous things to and about judges anyway. In many of these situations the offending lawyer is sanctioned, and sometimes disciplined as well.
The lawyers to whom it never occurred to act this way just shake their heads in utter wonderment. They simply can’t understand why any lawyer would take the risk of being sanctioned, disciplined and publicly tarred and feathered for shredding evidence or buying a witness, and yet lawyers still do it anyway. People do what they want to do, and what they want to do comes largely from social and cultural patterning.
The unfortunate truth is that the old reasons for lawyers to be civil to one another have lost their sway, and until a new rationale to be civil can be found to make lawyers want to be civil, then we’re going to keep living in a very uncivil legal world.
What is Civility and What are its Benefits?
What is civility? P.M. Forni teaches civility at Johns Hopkins University in Baltimore, MD, where he directs the Civility Initiative, a combination of academic and community outreach activities involving civility. In his book Choosing Civility: The Twenty-Five Rules of Considerate Conduct, Forni provides some good working definitions of civility. He says civility involves acting with respect, restraint and responsibility toward others. It means taking into account the feelings and comfort of others before you act. It means being a good citizen and a good neighbor.
Civility isn’t the same as courtesy, politeness or manners – all of which can be simulated by a selfish con artist to gain some sort of advantage. True civility stems from knowing that we are all like wax and that whatever we say or do to each other leaves a lasting impression. A civil person understands that others are feeling, vulnerable beings who can be hurt. He never treats anyone as object, but always acts with care, concern and consideration.
A civil person understands we are all in this together and none of us lives in a vacuum – that our lives are inescapably relational and whatever we do or don’t do touches and affects everyone else. For this reason the civil person is willing to give others the benefit of the doubt. He assumes that rude people are well intentioned but ignorant or confused rather than deliberate evildoers. He treats people with courtesy and politeness even when they act obnoxiously. The civil person is always aware of the existence and needs of the people around him. He doesn’t open a door and let it slam shut in the face of the person behind him or accelerate into a newly open parking spot that another driver has been waiting for patiently.
The foundation of civility is empathy. You can’t act with civility unless you can imagine the consequences of your actions on others and you care how they will make others feel. The civil person maps out the likely effects of his intended actions on others and then senses how he would feel if he was in their place. To be civil is to think before you act and give consideration to whether your planned course of action will cause unnecessary inconvenience, annoyance, offense, upset, suffering or pain to other people who may be affected. If so, a civil person will refrain from acting or reformulate his plan of action to avoid the harm. A civil person will also notice whether he is unintentionally causing any of these negatives to other people after he commenced his action and then stop or modify what he’s doing to stop or mitigate the harm.
An uncivil person is oblivious or indifferent to his effect on others. He will blast his stereo in an apartment with onion skin walls at 2:00 a.m. on a week night without ever considering his neighbors’ need for peace, quiet and sleep. If they knock on the common wall to signal their displeasure he will crank the music louder in retaliation. He will throw lit cigarette butts, empty cans of soda or beer and other kinds of refuse anywhere he happens to be as long as it’s not his house. He doesn’t see the point of making the effort to walk to a trash can. If anyone complains, he angrily demands to know “what are you, a cop or something?” insinuating they should mind their own business and their failure to do so puts them way, way out of line.
If you’re going to be a genuinely civil person, you can’t pick and choose to whom you’re civil. You don’t have the option of showing civility only to those people who are respectful and polite to you, but withholding it from people you perceive as rude and crude. Forni says civility is an obligation for all people all the time. Having a brilliant legal mind, having a great trial record or having substantial wealth from big jury verdicts, doesn’t authorize you to treat others like dirt.
Even if opposing counsel acts in ways that irritate you, even if he gives you plenty of reasons to dislike him, and even if he stubbornly refuses to accept an argument which you find invincible, you still have no license to treat him with disdain and disrespect. Responding to incivility with incivility never once improved communication between lawyers in conflict and never once helped to resolve a legal dispute. Responding to incivility with incivility spirals everything out of control, and spreads nothing but anger and stress. Civility is a choice. Forni says people who are civil go through life scattering joy rather than pain. Civil people lessen the burdens of living for others rather than increasing them; and for that reason civil people are highly thought of and greatly appreciated.
When we grew up our parents taught us to say “please” when we wanted something and “thank you” when we got it. Our parents also reminded us every time we forgot to utter these social code words, and even threatened to deny us treats if we didn’t speak them. They also taught us to do such things as: bathe often; groom ourselves daily; dress neatly not sloppily; keep our voices down in public places to avoid disturbing others; keep our promises to people depending on us; say excuse me instead of pushing others aside when you want to get someplace; going along with what friends want to do instead of stubbornly insisting they always do what you want; settle disputes with words not fists; apologize when we are wrong; and keep insulting thoughts to ourselves (like not telling Aunt Myrtle she’s fat or Uncle Mort he’s a cheapskate). Is civility nothing but a hollow form of social intercourse which we follow because we were trained to do so?
No and far from it. Forni says civility glues society together and sets a moral tone for it. An act of civility helps the beneficiary feel that he has been seen and acknowledged, that his life has meaning, that he personally has value and that he is part of a community. An act of civility affirms both the individual to whom it is directed and the community in which the actor and beneficiary live.
What are the Harms of Incivility?
Civility involves a bit of self-sacrifice in exchange for promoting the value of community. While too much self-sacrifice produces depression and is bad for us, some self-sacrifice is good for us. That’s because self-absorption leads inevitably to depression, whereas forming and nourishing social bonds leads to happiness. When people value self-gratification and individual expression above everything else civility is lost. Forni says just a generation ago it was the norm for people to keep their voices down in libraries so others could read with full comprehension and enjoyment in an atmosphere of peace; yet today in libraries across the country people gather to converse loudly as if they were on the street or a subway platform.
Acts of incivility by uncaring neighbors break communities apart. The owners of liquor stores that stay open all night and sell beer to anyone (including minors and the obviously intoxicated) are setting in motion destructive forces like public drunkenness, loud street noise at night when people are trying to sleep, litter and sometimes alcohol-fueled car crashes or gun battles. Developers who grab every inch of open space to build box-like condos for cash are depriving communities of land for parks, leisure and recreational activities.
How do acts of incivility affect individuals? Forni says that rude, dismissive conduct makes the victim feel alone, invisible, degraded and valueless. This occurs when a friend really needs you to listen in a focused way to his personal bad news, to acknowledge that you’ve heard and understood it and empathize with him, but instead you immediately switch the subject to yourself or you jump right in and tell him how to solve his problem. It occurs when one neighbor repeatedly lets his dog poop on another neighbor’s lawn without cleaning it up and continues to do this even after the other neighbor posts signs pleading with the owner of the midnight pooper to stop.
In The No Asshole Rule Robert I. Sutton, Ph.D., gives many examples of bullying by rude, insensitive bosses and the harm it does. Some bosses enter their employee’s office and read their personal mail, eat food off their desk or make inappropriate comments about their bodies or clothes. Some surgeons frequently bark needlessly harsh criticism at surgical nurses who become depressed, file stress claims and stop working.
There are civil and uncivil ways to voice disagreement or displeasure with someone else engaged in a work task. If opposing counsel is attempting to coach his witness, you ought to object on the grounds that “counsel is testifying” or “counsel is coaching his witness,” demand that the testimony be stricken and request opposing counsel to stop coaching his witness or you will have to terminate the deposition and get an order from the court instructing him to stop. But when you believe opposing counsel is coaching his witness it’s not okay to respond as Joe Jamail did in a now infamous deposition: “You could gag a maggot off a meat wagon.”
Acts of rudeness also stir up inner conflict and turmoil. If you’ve been waiting in line for a long time and someone just cuts in ahead of you as if you didn’t exist, one part of you wants to scold the person for rudeness and demand that he go to the end of the line. Another part of you fears making a scene and disturbing the other people in line. The inner critic steps in and calls you a coward if you quietly ignore this violation of your rights, yet the mature part of you asks if it’s worth it to start an argument that could end up in a screaming slap fight with children present.
Reasons for the Decline of Civility Among Lawyers
There is no question that the level of civility among lawyers has declined steeply after World War II. This has been chronicled in scholarly articles, books and the newsletters put out by the ABA as well as state and county bar associations. Some actual examples of incivility were set forth in 1998 by Jean M. Cary, a Professor of Law at Campbell University and frequent lecturer for NITA, in her article titled Teaching Ethics and Professionalism in Litigation: Some Thoughts. Note that Prof. Cary, a highly civil person, took care to disguise obscene language used by lawyers in deposition transcript by replacing the letters in some words with asterisks. Since all the lawyers I know are over eighteen, I’m going to spell the words the way they were used for full impact.
In her article Prof. Cary cites deposition transcripts in which lawyers called each other a “lying son-of-a- bitch,” a “fat slob,” an “asshole,” a “cocksucker,” a “scummy and slimy….. little man,” a person with a “foul, odorous body” a “sheeny Hebrew” and “a fucking cunt.” She also cites physical abuse during court proceedings including one lawyer punching out another lawyer, and one lawyer throwing the contents of a soda cup in another lawyer’s face and putting him in a headlock.
How come lawyers have become so uncivil? There are many possible explanations. First, the decline in civility among legal professionals is consistent with and mirrors the erosion of civility and the rise of narcissism in American society generally. Forni notes that in contemporary America rage of all kinds has supplanted civility. Daily newspapers have documented thousands of incidents of school rage, sports rage, road rage, air rage and desk rage. At the heart of these disturbing incidents are narcissistic thoughts such as: “Someone hasn’t treated me the way I deserve to be treated and some bastard is going to pay for it!” coupled frequently with an exhibitionist desire to have the world watch your revenge over the Internet.
Bullies who hate their school and fellow students film themselves punching and stomping some helpless nerd and post the video on Youtube. A group of four students punches their teacher for not allowing them to watch Jerry Springer on TV during class. Parents of elementary school kids playing recreational soccer scream at and physically assault the volunteer adult referee. A female driver merges ahead of an angry male driver who reaches through her car window, grabs her beloved dog and throws it into the adjacent lane where it is struck and killed. An airline passenger who is told he has had enough beer and will get no more for the remainder of the flight hits the flight attendant in the head with a beer can. A disgruntled employee who was fired from his job returns with an automatic rifle to kill his supervisor and as many co-employees as he can shoot.
These days we see many lawyers who shoot off harsh and obscene words like verbal bullets in response to even the slightest provocations. Some of them are quite proud of never holding back in favor a civil tongue. I’ll never forget going to another lawyer’s office for a deposition. He made my client and I wait for 15 minutes seated in front of his desk before he finally showed up. This was a ploy to get us to read the many framed letters on his wall before the deposition commenced. Although I would have been ashamed of the letters and burned them, he displayed them proudly like trophies. Each letter was fired off to him by an irate lawyer who complained that he was the rudest most obnoxious jerk they had ever faced.
What could be driving this trend? In part it is a natural outgrowth of American culture. America is the land of “radical individualism,” where every one of us is given the right to pursue life, liberty and happiness his own way. This has spurred a loosening of social bonds and remarkable degree of narcissistic self-absorption which is fueled by advertising. We are exposed to 30,000 ads a day telling us how to be special, how to stand out and how to distinguish ourselves from everyone else – whether by driving the coolest car, wearing the coolest jeans or even outdoing other shoppers by finding the best bargains at Kohl’s, Target or Wal-Mart.
America is the land of fierce status-competition. There is a career ladder we feel compelled to climb marked by ever more prestigious job titles, higher salaries and impressive individual accomplishments. Then there’s the imperative to keep buying ever newer, better and more envy-producing material possessions. Our national religion appears to be consumerism. We are kept in thrall by the pronouncements of advertisers who tell us that we will keep smelling bad, looking bad and failing our loved ones unless we spend more money than we earn, even more money than our houses are worth, to buy products that make us look good, smell good and succeed.
We are spending much less time pursuing activities that make us feel good like bonding with family and friends, exercising, playing games and sports, communing with nature or seeking spiritual solace at houses of worship. We are spending ever more of our time doing things that make us tense like commuting in endless clumps of snarled traffic, straining to grind out a living at the office, taking out loans to keep up with the Joneses and worrying late at night about how we’ll pay for our houses, our kitchen remodels, our cars, our health insurance, our vacations and private school tuition for our children.
Stress makes us thin-skinned, agitated and irritable. If people could live more simply with lower salaries and with fewer and less costly possessions, they would decrease their stress and increase their happiness by opening up opportunities for peaceful, contemplative activities (like meditation, yoga or walking in nature), creative activities (art, poetry, home cooking), play, exercise and social activity (family time, outings with friends or leisurely sex with one’s spouse or partner).
Unfortunately, so many of us fear any decline in our standard of living or socio-economic status to avoid shame that we struggle furiously to keep increasing our income and we berate ourselves mercilessly if we go through a period of decreased earnings or unemployment. Some lawyers have died by suicide during this economic recession in response to loss of a partnership. Living under constant financial pressure keeps our stress hormones high, so we lose our patience, flexibility and sense of humor. We give no quarter to anyone. If another lawyer, our spouse, our kids or another driver irritates us, we blow up.
In the book Bowling Alone, Robert Putnam pointed out that working all the time to buy stuff has led most Americans to drop out of the civic, labor, political, religious, charitable and social organizations which they used to participate. When they dropped out they lost a sense of having a larger purpose for living and a sense of belonging coupled with the enjoyment of other peoples’ friendship, support and advice. More and more people are isolated, lonely, depressed and not in any mood to be kind to strangers. Human pain is a cause for them to lash out at other people they barely know or don’t know at all.
Forni says that the pressure to succeed (to distinguish oneself through achievement and acquire as much money and possessions as possible in our status-competitive society) leads people to ignore civility. He says today’s philosophy is that “goals matter, people don’t” and that the end justifies the means. Justice Sandra Day O'Connor wrote in a dissent in Shapero v. Kentucky Bar Association that membership in a profession “entails an ethical obligation to temper one's selfish pursuit of economic success by adhering to standards of conduct.” Amen.
In the legal realm the pressure to succeed has given birth to Rambo litigation tactics. See, Welcome Home Rambo: High Minded Ethics and Low Down Tactics in the Courts, 25 Loy. L. Rev. 81 (1991); Jean M. Carey, Rambo Depositions: Controlling an Ethical Cancer in Civil Litigation, 25 Hofstra L. Rev. 561 (1996); and Robert N. Sayler, Rambo Litigation: Why Hardball Tactics Don’t Work, 74 ABA Journal 79 (March 1, 1988).
In the Welcome Home Rambo article the authors characterize uncivil Rambo litigators as displaying: 1) A mind set that litigation is war and that describes trial practice in military terms; 2) A conviction that it is invariably in your interest to make life miserable for your opponent; 3) A disdain for common courtesy and civility, assuming that they ill befit the true warrior; 4) A wondrous facility for manipulating facts and engaging in revisionist history; 5) A hair-trigger willingness to fire off unnecessary motions and to use discovery for intimidation rather than fact finding; and 6) An urge to put the trial lawyer on center stage rather than the client or his cause.
Clearly stress from the financial pressures and hardball tactics of contemporary law practice, can lead reasonable people to ugly acts of incivility. Can you take a broad view of your career and life as necessarily involving gain and loss, pleasure and pain, praise and blame, fame and ill repute? Can you accept it’s simply not possible to control all the circumstances of your life, to predict the outcomes of your endeavors or know in advance which events will bring you harm and which ones will bring you greater freedom, happiness and joy? If you can do these things you will be resilient and even-keeled and you will be able to tolerate loss, pain, blame or ill-repute without becoming angry and needing to blame or lash out at others. If you can’t take the broad view then losing a case is intolerable and should any lawyer dare to stand in the way of you winning, then you’re likely to forget he’s as human, as vulnerable and as deserving of consideration and respect as you are.
Yet another factor in the loss of civility is the virtually complete loss of traditional authority. The kings and nobles who once ruled Europe and dictated proper etiquette are gone. There is no one to tell us how to behave, and certainly no one with the authority to do so. The 1960s, the era of free expression, let the top off the bottle and it hasn’t ever been recapped.
Having Nixon lie to us about Vietnam and Watergate (ending in his resignation) and having George W. Bush lie to us about WMDs to frighten our country into a war with Iraq that was supposed to last two weeks but has already lasted seven years is but the tip of the iceberg when it comes to authority imploding. America’s favorite TV shows are those which mock every form of authority in every conceivable way, shows like Family Guy. Precisely because of the loss of authority when leaders of the bench and bar tell us to be civil that’s not good enough anymore.
Forni points out that historically (prior to the American and French Revolutions) worth was conferred by virtue of being, i.e., simply belonging to a social class or caste. Membership in the group atop the social hierarchy required that you be shown deference and respect, and that you act in a mannered way prescribed by an accepted tradition of etiquette. The American and French revolutions overthrew authority and created a new social order in which capitalism and social Darwinism prevailed – to the most clever and most ruthless go the riches. Social worth was no longer conferred by being but by doing. It’s not who you were that mattered; it’s what you did and what you earned. The more impressive your job and the bigger your house, office and bank account the more you count in America.
These days many people we know seem incredibly goal directed, competitive and busy to the point of ignoring our efforts to communicate with them. Forni says the excuse of many businesspeople and professionals for being rude is that they’re just too busy to be civil. They need to get to the point and be as blunt as possible so no time is wasted climbing the corporate or academic ladder or making money. What counts in the new aristocracy of achievers is distinguishing oneself by achievement. Forni sums it up by saying, “As we pull out all the stops in our frenzy of achievement, we often disregard the norms of civility.”
Along with the loss of authority, there has been a constant lessening of formality in social address and intercourse. Men are no longer Mr. Instead men are guy, buddy, dude or just “hey you.” Women are no longer Mrs. or even Ms. In rap songs they are bitches, babes, MILFs, skanks, sluts and hos. The human mind confuses labels with reality. The words people use to talk about each other and address each other hugely impacts how they perceive and treat each other. These days in private conversation it’s common for lawyers to refer to opposing counsel as Satan or as that dick, prick, whore, lowlife, shithead, fucker or asshole. All such words have very negative associations that color your vision of the lawyers you dub with them. Using these words is dangerous because they are a license to abuse others. If I call the other lawyer a maggot isn’t that okay if he really is a maggot? We need to clean up our language if civility is ever going to return.
Clearing Up the Cognitive Distortion That Promotes Incivility
Civility is beneficial for everyone, but do you want to see everyone benefitted? If you want people to be civil towards you, but you’re not willing to be civil towards them, the civility crisis cannot be solved.
A precondition for the universal adoption of civil behavior among lawyers is ridding ourselves of the cognitive distortions we generate toward each other. The key cognitive distortion is that the lawyer who opposes you, the lawyer on the other side, is different from you, and that while you are a good person who is right and deserves happiness, he is a bad person who is wrong and deserves to suffer – not just to lose the case and get nothing for his work, but to feel bad too. Where do cognitive distortions such as this come from? Buddha said there were three poisons that made us suffer in life consisting of grasping, aversion and distortion.
According to Buddha humans suffer from their constant efforts to grasp for and hold onto carrots (what feels pleasant and rewarding) and to avoid or push away sticks (what feels painful or harmful). How come these efforts produce suffering? It’s because we often fail to acquire what we anticipate will be pleasurable and suffer from unfulfilled desire, we are often disappointed by the quality of the sought-for object when we acquire it and even if we do get it and enjoy it, we can never hold onto to it and we may have to pay a big price for it (anything from indigestion from overeating to losing your marriage for cheating that one time). All people, objects and situations which bring us pleasure change, dissolve and disappear in time and that brings suffering.
Suffering also comes from the refusal to face, accept, adapt to and move past painful situations which leads us to deny or struggle vainly against reality. Life inevitably brings losses of all kinds – children leaving the nest; the death of beloved family, friends and pets; loss of physical strength, health, attractiveness and memory capacity; loss of one’s job or business; and loss of one’s home or other property from fire, theft or disaster.
In Buddha’s Brain, Rick Hanson, Ph.D., explains that the only way to end suffering is to stop grasping for life’s carrots and pushing away its sticks – to accept with equanimity the nature of life. In this way you can fully enjoy its pleasures without craving or addiction, and you can endure its pains without falling apart and becoming severely depressed, because you remain engaged with the world but are not troubled by it. You are centered. Your mind is clear enough and spacious enough to hold whatever happens without being knocked off center and going way out of balance.
Unfortunately the untrained mind is not realistic. It is not prepared to accept reality with equanimity, and it unconsciously creates cognitive distortions to obfuscate the fact that no one can gain and hold onto all the pleasure he seeks or successfully avoid loss in this life. Thus the gambler keeps playing and loses his shirt based on the fantasy that he will eventually win and his craving for euphoria of winning. Thus the spouse left behind by an unexpected divorce never remarries to avoid risking the pain of falling in love in again, marrying and having his spouse leave again.
All such actions are buttressed by abundant mind-generated rationalizations which hide the nature of reality. The gambler focuses narrowly on the fact that one person he knows once won a big jackpot while screening out the fact that the vast majority of gamblers lose and even when they win, they most typically lose their jackpot by trying to increase it. The hurting spouse who was ditched can only think about feeling humiliated and never wanting to feel that way again. He ignores the fact that his family and friends don’t think less of him, that they are warmly sympathetic and trying to connect him with new possible mates. He ignores the fact that first marriages don’t always work out (indeed 60% end in divorce) but that many second marriages are stable and happy. He ignores the fact that by choosing not to risk a second marriage he guarantees he will be alone and lonely.
With this background in mind let’s clear up the cognitive distortion affecting how lawyers see each other. While some lawyers choose to live in a simple, humble fashion where engagement in community-oriented activities and the pursuit of a spiritual existence trump material comforts, they do not exist in large numbers. Most lawyers grasp for the carrot of getting clients, winning cases, making money, garnering a reputation for success and having sufficient money to afford a large, comfortable home, the best health care for their family, new cars, exotic family vacations and great schools for their kids. Most lawyers do whatever they can to avoid the stick of losing out in the competition for clients, losing cases, losing money, garnering a reputation for failure or struggling vainly to pay for material goodies. Let us not pretend otherwise.
Assume you’re a plaintiff’s lawyer and you’re feeling uptight about all the debt you’ve acquired to pay for family expenses and office overhead and to advance case costs. Defense counsel has a job to do, which is to advance arguments designed to protect his client’s rights and interests. Given your urgent desire to avoid the stick of falling deeper in debt and gain the carrot of paying off your debts, you find defense counsel’s arguments completely bogus. You assume he knows better but he is cynically advancing these arguments solely to make your life miserable – solely to block, reduce and delay your access to a pay day. Because of your cognitive distortion you perceive even the most legitimate counter-arguments and litigation tactics as nothing but bad faith, ill intentioned conduct.
What about the defense lawyer who has been placed under tremendous pressure to save costs for an insurance company by resolving lawsuits more quickly with fewer resources and for less pay? He’s not happy about this arrangement but he desperately needs the business. He knows the insurance company will find another firm for its accounts if he cannot bring off this difficult task. His carrot is to keep the account and keep his cash flow by convincing plaintiff lawyers to accept small settlements early on. The stick he wants to avoid is losing his contract with the insurer. His cognitive distortion causes him to see plaintiff lawyers who hold out for more as greedy ambulance chasers who are never satisfied – as pigheaded lawyers who refuse to accept fair value settlements.
How can we take off our anger-generating glasses and rid ourselves of these cognitive distortions which prompt us to act in uncivil fashion? We can go a long way to doing this if we bear the following in mind:
First, we all work to satisfy the same needs – the needs to survive, to provide for our families, to achieve excellence, to contribute to the lives of our clients, and to obtain recognition, appreciation and a lasting impact on the world. We are completely inter-dependent, and we cannot live or reach any of our goals without the assistance of others. It is nonsensical for any person to feel superior to and look down upon any other (the foundation of incivility). Why?
If you believe that life on this planet was created by God, a Source or a conscious, benevolent Universe, then all persons are spiritual beings in human form who are equal in every way. If you believe that life began randomly and was then guided by the principles of evolution, it follows all human beings are equal because we are 99.99% genetically identical. As Wayne Dyer said for one person to feel superior to another is as silly as one wave atop the ocean feeling superior to another or one branch on a redwood tree feeling superior to another.
Second, disagreement is expectable and inevitable in the legal system and does not have to be a source of cognitive distortion, anger or incivility. Disagreement crops up initially because the legal system exists to invite and process opposing claims and defenses. Someone supposedly injures someone else or fails to carry out the terms of a contract and voila, the victim hires a lawyer to file a lawsuit seeking a remedy based on allegations of wrongdoing which the defendant is required to admit or deny. The defendant gets his own lawyer who needs time to investigate the facts and evaluate the merits of the claim, so he denies the claim and the litigation begins. The case will get resolved someday, somehow (by settlement, arbitration or trial). Even if it is resolved through settlement (as most cases are), the entire process will be marked by polar positions and disagreements until an acceptable compromise can be reached.
Disagreement during litigation is expectable and inevitable because it gives the lawyers on each side a way to test the strength of and to probe the weakness of their own position and the position of the opposing party. Disagreement is also expectable and inevitable because of how the human mind works. Every person has an alternate reality and sees the world differently based on his own unique upbringing, education, training, life experiences and psychological characteristics.
In On Being Certain: Believing You Are Right Even When You’re Not, neurologist Robert Burton, M.D., says all of us process information and solve intellectual puzzles in slightly different ways based on extremely small differences in our genetic codes. He also says that feeling you’re right brings pleasure from a release of dopamine into the reward center of the brain, whereas feeling you’re wrong brings discomfort so people like to be right. Dr. Burton is convinced that the brain’s use of dopamine to bring us pleasure when we feel we’re on the right track in processing information was wired into our brains to keep us going (instead of quitting) when faced with difficult intellectual challenges. But he cautions us most strongly that feeling certain is different from objective reality and is not a cosmic endorsement of your position. You can be completely wrong about something even when you’re positive you’re right. Thus we need to remain humble and open minded even when we feel strongly we’re right and the other person is wrong.
Have you taken off your anger-generating, incivility-producing glasses yet, the ones with the built-in cognitive distortion? If they’re not off are they coming off or are you at least considering the possibility of taking them off? If so, read on. Here is my new 21st century rationale for lawyers to be civil to one another which has two parts, your personal integrity and your health.
Be Civil to Preserve Your Integrity
The old rationale said “be civil to each other because it’s the right thing to do.” That rationale has lost its convincing power, because we are living in a period of moral relativism. In most situations one person’s “right” is open to question and debate. There are, however, some exceptions, some things that all non-psychopathic people agree upon. One thing that normal people want to do is live with integrity, which means they want to act consistently with their core values. If you’re not a psychopath, then you presumably wish to avoid being a hypocrite.
Now that we’ve established you don’t want to live as a hypocrite, ask yourself if you want other lawyers to treat you with courtesy, consideration, politeness, dignity and respect? If so it would be entirely unreasonable and unfair for you to ask them to do this if you weren’t prepared to treat them the same way. As Matthew said in the Bible, “Treat others as you would have them treat you.” If you’re not prepared to treat other lawyers in civil fashion, you have no moral basis to complain if they treat you like garbage. It’s that simple.
Preserve and Promote Your Health
The old rationale said “be civil because the public will disapprove of our profession if we are constantly attacking one another with rude and insulting verbiage.” That rationale never had much convincing power. The “public” is a concept not a real entity. Lawyers simply don’t care what the whole of society may think of lawyers in general. They are focused on that limited segment of the population which needs or may one day need their specialized legal services within the narrow geographic area in which they practice.
The mission of lawyers is to reach those people through advertising, sign them up, handle their cases competently and get paid. Lawyers tend to believe that people who need their services want them to win their case, and these people don’t care or shouldn’t care about how they speak to opposing counsel. Some lawyers even think their clients want them to verbally brutalize opposing counsel if that will help win their case.
The new rationale I’m proposing for pro-civil behavior is that civility between lawyers will promote your health and happiness, whereas incivility physically sickens lawyers, makes them suffer emotionally and even decreases their longevity. The new rationale is meant to appeal to your rational self-interest rather than any concern with public opinion.
There are two sources of evidence that being civil is good for you. First, experts in stress medicine, cardiology and psychology have reached a consensus that chronic anger (from frequent, angry verbal exchanges) causes social isolation and physical changes to the body which impair health and limit longevity including chronically high levels of the stress hormone cortisol, depression, diabetes, hypertension, vascular stiffening and occlusion, heart attacks and strokes. If you want to explore this further read Freeing the Angry Mind by C. Peter Bankart, Ph.D; Love and Survival: The Healing Power of Intimacy by Dean Ornish, M.D; and Why Zebras Don’t Get Ulcers by Robert M. Sapolsky, Ph.D.
It should also matter to you that angry thoughts cause angry feelings which activate the sympathetic nervous system (SNS). The SNS is the branch of your autonomic nervous system that causes the emergency fight-flight response powered by the release of stress hormones from the adrenal glands into your bloodstream. When your body goes into fight-flight blood flow is increased to your skeletal muscles to help you stand and defend yourself from or to flee an attacker. At the same time blood flow is restricted from your digestive system and the frontal lobes of your brain. You actually become stupid when you’re angry, and by stupid I mean cognitively inflexible. Your brain gets stuck in a rut. It can only entertain a very limited number of thoughts which it repeats over and over (a process called perseveration).
There’s more bad news. One of the smallest but most complex and important modules in your brain is the hippocampus (so named in Latin for its seahorse shape). The hippocampus is what encodes short term memories into long term memories for permanent storage in the brain, and it must function well for us to learn any new information or skills. The hippocampus has more receptors for cortisol than any other part of the brain. When we are chronically in fight-flight from arguing angrily with our colleagues the flood of cortisol going into our brains damages and atrophies (shrinks) the hippocampus. Dr. Sapolsky found that chronically stressed monkeys had atrophied hippocampi and were learning impaired. The same thing occurs to us.
Here’s the good news. The other part of our autonomic nervous system is the parasympathetic branch which cools, calms and quiets us and carries out what are called “rest and digest” functions (the opposite of fight-flight). We activate the parasympathetic nervous system (PNS) whenever we relate to others civilly as equals for the purpose of constructively resolving a common problem. When we have good interactions with our colleagues (good meaning peaceful and cooperative rather than tense, rude and angry), we promote the release of feel good chemicals in our brains, chemicals like dopamine, serotonin and oxytocin. When our SNS is activated by anger we are vigilant, edgy, easily rattled and ready to lash out. When our PNS is activated we are calm, steady, centered and capable of being at our best. Mutually respectful and courteous conversations affect us like natural Prozac whereas uncivil exchanges of insults are like poison.
In Buddha’s Brain neuropsychologist Rick Hanson, Ph.D. explains two extremely important facts about the human brain which are relevant here. First, our brains have a negativity bias inherited from our prehistoric ancestors. We are much more sensitive to negative events and hold onto them much more tightly than positive events, because cave people would never have survived unless they could detect and deal with potential threats to their lives in milliseconds. The positive joy of singing Ug around the campfire with your longhaired buddies had to come a distant second to knowing which beasts could kill you and how, and the most efficient way to kill or escape from them.
Dr. Hanson says that our brains are like Velcro for negative experiences and like Teflon for positive experiences. Please consider a couple of examples from your everyday life. When a client or colleague says “good job,” don’t you tend to dismiss it or forget it rather quickly, whereas if opposing counsel calls you a “doofus” you’ll replay the scene in your mind dozens of times as you nurse revenge fantasies? When you (accidentally of course) make a mean-spirited, smart-aleck remark to your spouse, don’t you have to make up for it with many positive strokes before your spouse warms back up to you? Psychologists say it takes 5 positive moments in a marriage to undo 1 negative moment and mend the harm.
Second, the quality of our lives comes largely from the overall “feeling tone” of our consciousness, which can be predominantly negative, neutral or positive. This feeling tone comes from the unconscious part of our brain and is generated by huge numbers of implicit memory traces left by negative, neutral and positive experiences. These implicit memories “sculpt our brain.” Dr. Hanson says that we can develop a predominantly positive feeling tone for our consciousness, despite the brain’s negativity bias, by creating or co-creating as many positive experiences as possible and by really “taking them in,” by which he means savoring and enjoying them.
He’s not suggesting that we become Pollyannas and blithely ignore negative experiences. We need to stay alert, aware and responsive to our environment, including the negative experiences that will assuredly come our way. What Dr. Hanson is recommending is that we consciously choose to live in a way that maximizes the creation and savoring of positive experiences and which minimizes the creation of negative experiences that bring stress and suffering.
Dr. Hanson says that positive feelings have far reaching benefits. Citing medical and psychological research he states that positive feelings increase the strength of your immune system, make your heart less reactive to stress, boost your mood, blunt painful experiences, and increase optimism, resilience and resourcefulness.
Clearly if you love to meditate, dance, ski, play tennis, bake your own pizzas, paint landscapes or make love with your spouse, you can generate positive experiences by doing these things. But let’s remember that we spend more time in the office than we do any place else, including the places we pursue those pleasurable activities. Being civil to opposing counsel, judges, colleagues, paralegals, and secretaries, will bring positive experiences, while being uncivil is guaranteed to bring negative ones. Be smart and be civil in your law practice. Do it for yourself at the beginning. Eventually you will enjoy providing positive experiences to others.
The quality of our lives depends on how well we relate and connect. Forni says it’s as simple as: “Good relationships make our lives good; bad relationships make our lives bad.” Antoine de Saint-Exupery correctly observed, “There is no joy except in human relationships.” It is a cognitive distortion to deny that you’re in a relationship with another human being when you are litigating against another lawyer in a lawsuit. The better you make these relationships through civility the more positive your experiences and the better your mood and your health. The worse you make these relationships through incivility the worse your mood and your health.
Yes, life is difficult, but everyday we each get chances to make life more joyful or more miserable for one another. We can lighten each other’s load or add to each other’s burden. Forni asks every person if he wishes to scatter joy or pain as he moves through this life. This is a question of the most critical importance for each one of us.
So start being more civil today. What happens if you extend civility to the other lawyer but he craps on you? Do you throw civility out the window? What if, instead of angrily attacking an uncivil lawyer, you responded with self-self-control and poise? You would certainly benefit in that you would avoid flooding your body with stress hormones, increase your moral authority, set a great example for everyone else and enhance your own self-esteem. Maintaining your dignity and living up to your own high standards of behavior in the face of rudeness is a challenge, but every time you do it you grow as a person. You also help convert onlookers to civility and make our world a better place to live.