by Robert L. Jeffs
Sitting in a deposition of an opposing party, I run through the options available to me as opposing counsel makes his tenth speaking objection designed to coach the witness on how he should respond to my question. I have already asked my colleague to limit his objections pursuant to the Rules of Civil Procedure. My options include: 1) reach across the table and constrict opposing counsel’s windpipe so no more sound comes out; 2) inform counsel that if he continues to coach his client, he will do so without his front teeth; 3) comment on opposing counsel’s pedigree and invite him to meet me at the Courthouse to continue our discussion. Recognizing that my list of options may be influenced by my rising temperature, I decide I should take a recess to reconsider my options.
Fortunately, the break gives me the chance to remember that civility is a two-way street. After I calm down, I am able to formulate a more rational response that actually defuses the situation rather than escalating it. Not only did I avoid behavior that might reflect badly on the profession, my client benefitted from not incurring attorneys’ fees in a dispute tangential to the matter being litigated.
Concerns of civility and the tempering of speech that is discordant or contentious have received a substantial amount of both national and local attention in recent months. Highlighted by the shooting of Gabrielle Giffords and Federal Judge John Roll, the nation seems truly interested in promoting civility. Locally, Mayor Becker of Salt Lake City and Lt. Governor Greg Bell co-chair the Utah Civility and Community 2011 Initiative. Former Utah Bar President Steve Owens sits on that Initiative on behalf of the Utah State Bar.
As the members of the Bar know, the Utah Courts and the Utah State Bar were on the forefront of the issue, adopting the Utah Standards of Professionalism and Civility several years ago. Lawyers have always held themselves to high standards of professionalism and ethical conduct. The Standards of Professionalism and Civility provide practical guidance for our day-to-day interaction with other attorneys, the Court and the public. The media enjoys portraying attorneys as a caricature, emphasizing aggressive, rude, or unethical behavior. I am proud to report that most of the attorneys I have the pleasure to deal with are defined more by their collegiality, professionalism, courtesy, and ethical conduct.
Many members of the Bar or the Court have written or spoken about those Standards of Professionalism and Civility. Hopefully, all of the members of the Bar are now familiar with the Standards and strive to incorporate the principles into their practice. I wish I were always a model of Professionalism and Civility. Unfortunately, at times I succumb to the pressures of a busy litigation practice and the contention inherent in our work and stray from those principles. I know I am not alone. I have on occasion been on the receiving end of uncivil or unprofessional conduct. But when I reflect on those occasions, I come to the realization that often my own conduct, my frustration, my anger or impatience played a significant role in escalating the problem rather than diffusing the situation.
While it is an easy justification for unprofessional conduct when you were not the first violator, that you are simply responding in kind to the conduct of opposing counsel. But try as I might, I can’t find an exception in the Standards of Professionalism and Civility that provides I only need to act civil when opposing counsel is civil. Based on my own experience, civility and professionalism invites civility and professionalism even in the face of uncivil behavior.
As a profession, I hope we continue to be on the leading edge of the civility movement. We are uniquely positioned in our role as problem solvers, as counselors, as advocates in contentious, acrimonious, and emotionally charged disputes to set an example for the community to foster civility.