A primer on professionalism

When I tell people that I am a trial attorney, one of the first questions they ask is about attorney relationships. The general public assumes that all attorneys spend most of their time engaged in a heated battle with opposing counsel. I am always delighted to inform them that some of my best friends are defense attorneys, and even if we do not form a lifetime bond, I have a great collegial relationship with most attorneys on the other side.

Of course, there are the exceptions. During the prosecution of one of my wrongful death cases earlier this year, I encountered a situation that was so hostile it had me looking to the Attorney Code of Ethics (which was sadly absent of any definitive requirement of professionalism towards our colleagues), as well as my mentors for guidance. The conduct by the lead defense counsel was appalling and totally unjustified; personally attacking me in e-mails and having outbursts during discovery depositions, including calling me a “little girl” several times.

Although I hope this type of conduct is the exception and not the rule, it caused me to reflect on several lessons I have learned about professionalism in law (or at the very least, just acting like a normal human being!):

1) Think it, do NOT ever write it. Assume that every single thing written during the course of litigation will at some point be seen by a judge. The easy, casual nature of e-mail is deceptive—it feels like a conversation among friends—but it is not. Within the past nine years, e-mail has become the main means of communication in our profession. E-mail is great, saving you and your client time and money—but be careful what you say at all times and remember that it might not be the best way to communicate with certain individuals.

2) Do not engage a miserable attorney. Misery loves company. It is safe to assume that an attorney that is making your life a living hell, likely behaves that way towards everyone else in their path too. The less interaction with this type of person, the better for you and your case. Only respond when necessary and keep responses short, sweet and focused. Taking the ‘high road’ might not be fun—it requires self-control and patience—but do not ever sink to the level of an attorney that is misbehaving. Take solace in the fact that most judges, and all litigators, know who is naughty and who is nice in our community. You will never regret acting with grace and dignity.

3) Assume you will meet again. It is easy to forget that our community of litigators, despite the deceptively large number, is small and tightly knit. It is highly likely that an attorney you have on a case, meet in a courtroom or work with on a committee, will come up again and again in your professional life. For example, during my early days as a defense attorney, I was instructed to mail out a standard practice form letter. I will never forget the telephone call I received a few days later when the plaintiff’s attorney called my office to chastise me and inform me that I “was no one, knew no one and would never be anyone” and that he was going to “black ball” me from the legal community. I had no idea what he was so upset about (and now that I know how standard 201(k) letters are, I am even more baffled), and hung up the telephone feeling disheartened. Later that year I was at an event and encountered this attorney yet again. Turns out he was running for a bar association office. Not recalling my name, he warmly shook my hand and asked for my vote. He continues to seek election to this day. Although I do not hold a grudge, I decline to ever vote for him for the same reason I never date men who are mean to restaurant servers….

4) Show mercy. At some point you will receive a frantic phone call from another attorney needing an extension. Even if they were tough on you, rude to you, give them the extension. I have seen a huge transition in the personality of a difficult attorney who has received mercy—why not buy yourself what could be a couple of years of less terrible interactions, for seven extra days on writing a brief? You might need a favor from them in the future and if they do not give it freely, point out that you did it for them.

5) Ask your mentors. In my recent case where the lead attorney’s conduct was wildly out of control, I turned to my peers for advice. Most of the advice I received was to move for sanctions or a protective order. This did not feel like the correct solution but I had no idea how to handle the level the conduct was rising too. I decided to turn to a judge that I respect, seeking out her wise counsel on the situation. She said to handle the situation with as much grace as possible unless it prevented the forward momentum of the case.

6) Remember we are all human. In addition to being attorneys, we are all human beings. Our job is inherently adversarial which adds a unique component of stress to what is already a stressful position. You have no idea what is going on in someone’s life—if they are going through a divorce, a sickness, a death. Try not to take interactions personally and also, try to show empathy and patience when someone is not being very likeable. You will never regret taking the high road, but an attorney who engages in poor conduct will likely see that come back to haunt them.

7) Accept an apology. Twice in my career I have received apologies from poorly behaving attorneys. After listening to what they had to say, both involving serious health issues and medications, I readily accepted the apology and moved forward anew. Do not make someone grovel who already knows they were wrong. ■