The media cycles these days are filled with teachable civility moments. Recall the cycle following the assassination attempt in Pennsylvania of now President Trump. Politics aside, that harrowing episode was a reminder of the power of vitriol from so-called leaders in the media outlets and between political foes which stoke the fire within their diametrically opposed supporters. I start with this example because what I have found when facing uncivil co-workers, opponents, even co-defense counsel, is that taking the highroad, avoiding mud slinging, and overall, letting the temperatures lower before responding—is the best antidote, though, admittedly it’s not always easy. Today, the level of incivility that we witness every day online, on television, at the grocery store, etc. can spill over into our professional lives if we let it. I challenge you not to let it. Moreover, lawyers typically have staunch Type A Personalities and want to win—sometimes at any and all costs. That’s where the ethical lines get crossed and the rules of professional conduct get blurry. We have but one bite at the reputation apple—this is a rule which should never be forgotten as we navigate even the most contentious of cases and times.
Anger really is the enemy of reason, and the practice of law is not intended to be taken personally. If you respond in anger, and/or respond by taking another’s inappropriate conduct personally, you do a disservice to your client and to yourself. Moreover, the uncivil behavior spirals like a whirling dervish. Who wins? Simply put, neither you, nor your firm, nor your client.
As a young lawyer, I was assigned to depose a plaintiff's material scientist in Georgia for a toxic tort matter on a Saturday. The plaintiff’s lawyer was easily 20 years my senior from South Carolina and was angry that my client had not made any settlement offers. He was also clearly angry about having to work on the weekend. In the course of the deposition, he began raising his voice, becoming obstreperous and obstructionist with his objections in front of the witness, and soon he was standing up, waving his hand at me screaming, “If I don’t make my plane, your client will never get out of this case.“ It’s funny, in that moment, all I saw was his gold pinky ring that he was waving in front of my face. In response to his flying off the handle, I merely asked: “Are you finished?” He said, “Yes.” To which I said, “Thanks,” and proceeded with my questioning. The witness laughed audibly. Opposing counsel’s reaction was to sit down as he was clearly taken aback by my “adulting” and a simple one-word response to end his drama. I then carried on my business without raising my voice or getting emotional, and he sat down and let me finish. Sometimes unstable behavior is intended to elicit an equal or more emotional response from you in order to throw off your flow. Never let them see you sweat and never stoop to their level.
I had the fortune or misfortune of litigating the first four premises liability cases sounding in human trafficking in the State of Maryland. To say I learned a lot in those cases is an understatement. I had lived a sheltered life and at the time those cases were referred to me, I had never taken the deposition of a witness in jail, let alone of a convicted trafficker. In preparation for that deposition, I did a lot of online research, and I also spoke with my human trafficking expert on how traffickers operate and mentally manipulate their victims. Why was this important, you ask? It was important because I needed to get answers from this trafficker, who was cunning and who was likely going to plead the Fifth, given his appeal status. My expert instructed me to establish a rapport with the witness about some topic, unrelated to trafficking, and then ask the questions for which I really needed answers. Suffice it to say, I did just that, asking the witness about his sleeve of tattoos and what they meant, and then I ultimately drew from him substantive testimony which the plaintiff’s lawyer could not. As we left the jail, the plaintiff’s lawyer was clearly upset over the testimony, and he pulled me aside and said, “I thought there was something going on in there between you and him.” As reprehensible as that comment was, instead of reacting, I simply walked away, and I used the witness’s testimony in a subsequent dispositive motion which ultimately was granted. Success is the best revenge.
Let’s talk about pro se plaintiffs. They can be a challenge. They often don’t understand the law, they tend to distrust the system, and they can be intemperate. It’s interesting. What I have found is that if the plaintiff exhibits uncivil behavior, then raising the level of formality with them and sidestepping any emotional tirades leads to the plaintiff upping their professionalism. It doesn’t always work, but it works much of the time. For example, instead of addressing the plaintiff by their first name, address them as Mr. or Ms. That little psychological overture makes a huge difference in how they address you. By ignoring the uncivil portion of their communication, and just sticking to the facts, you can redirect their angst. In essence, I lead by example in hopes that the other side will follow suit. Set the ground rules, if you will, at the outset. Regardless of who you are communicating with, one can also try to refrain from immediately responding so that cooler heads can prevail. Sometimes, time allows the situation to defuse itself.
What about the uncivil coworker—the one who doesn’t say hello as you pass in the hallway, for example? Or, the one who engages in high school-like gossip because you are working hard, building a successful book of business, and love what you do. You will never make everyone like you all of the time, that’s Rule No. 1; so, stop trying. You also don’t know what that person is going through that may be coloring their intemperate ways. Instead of reacting negatively, just let your actions and results speak for you. Rule No. 2: The cream always rises to the surface, and that’s you. So, keep going! Rule No. 3: Keep being the sunlight in the dark room, and you will keep succeeding. An insult from a source of ignorance is a compliment.
To recap, by taking charge of the room or the communication, you can avoid theatrics and unprofessional behavior of others. Part of taking charge is laying down the ground rules. You set a professional tone. You are in charge. You remind everyone at the deposition, for example, that this deposition is an extension of the courtroom, and that the judge and the jury will see their behavior. A second part of quelling unprofessional behavior by others is for you to behave—to always act professionally. You must behave calmly; you must act as if you are in court. Responding to bad behavior with snarky comments is a wrongheaded move. Always take the high road. Finally, I would be remiss if I did not emphasize the role of professional organizations, like the Maryland State Bar Association, in handling civility issues. Aside from the business opportunities, MSBA teaches leadership, fellowship, and professional development. MSBA members span many generations, which allows us to interact with lawyers who have lived longer than us and who have gained invaluable perspective. Through these deep relationships, you gain a broader leadership vision that is outwardly focused, and that facilitates navigating through civility brush fires. Embrace quality professional organizations like our MSBA—you will always gain more than you give.