Against this kind of backdrop, it's no wonder that, for some of us, the line between winning and waging war is blurred. Clever rebuttals can slip into verbal abuse, zealous advocacy becomes incivility, and the thrill of victory can turn into battle fatigue. In this article, we'll take a look at the role stress plays in incivility and how we can channel the emotional energy of litigation into appropriate, constructive behavior.
The School of Hard Knocks
It all starts in law school. Many bright-eyed first year law students experience classrooms as hostile, either because of a professor's critical teaching style or the peer pressure that students feel to perform perfectly. Students constantly measure their own performances against their peers and quickly learn to define success by outperforming their peers. Success is defined by the identified prizes (top 10%, law review, summer jobs with large firms) of the law school culture, yet the scarcity of these prizes creates feelings of failure and inadequacy among the majority of students.
In fact, the competition and emphasis on winning actively discourages collaboration among students and, in some cases, outright animosity. A Federal Bar Association study panel concluded, "the law school experience plays a large role in fostering an atmosphere that promotes a lack of civility." On this score, the panel noted that the competitive nature of the law school experience, in which class standing and grades are all important when it comes to landing a good job upon graduation, often influences the young lawyers approach to practice.
When Everyone Seems Like a Criminal
The line between zealous advocacy and incivility has always been a blurry one. An attorney was disbarred in 1883 for conduct unbecoming an attorney when he joined a mob to remove a prisoner from jail and hang him from an oak tree in front of the courthouse. In 1884, a lawyer was held in contempt of court for threatening the examiner during a deposition with an open knife and using insulting and indecent language. A year later 1885 — a federal court remarked that lawyers entering the "temple of justice" armed with pistols should be found guilty of contempt of court and disbarred.
Ever heard the expression "if you're a cop long enough everyone looks like a criminal?" It can happen to lawyers, too. The adversarial nature of the legal system can encourage us to view, and treat, our opposing counsel as the enemy. Before long, all of our work relationships can take on a combative tone; it's easy to suspect (or harbor) ulterior motives; to take every advantage; and to engage in manipulation and/or discourteous treatment of opposing counsel or our own staff.
The Build-Up to Blow Up
As peacemakers, lawyers have what Abraham Lincoln described as a "superior opportunity to do good." We can help people construct fair and durable commitments, feel protected, recover from loss, and resolve disputes. We also have the power to do considerable harm. We can aggravate hostilities and run up substantial transaction costs.
Given a choice, most of us clearly would choose to do good. So why don't we? We often feel like the system stacks the odds against us. We can point the finger in a lot of different directions, the culture of law firms, the adversarial nature of our judicial system, the rewards of playing hardball, or the inflated expectations of clients. The incentives to act combatively, selfishly, or inefficiently can be compelling. Yet the results can be disastrous. Deals blow up. Cases don't settle. Expenses escalate. Reputations suffer. Court dockets jam up. Commitments fall apart. Justice is delayed. And relationships are damaged.
Here's a common scenario: You're a smart, successful lawyer with demanding clients. You like to work independently but, because of the complexity and size of your workload, you have to depend on others to get some things done. You want things done quickly and you want things done right with minimal input from you.
The pressure builds and the deadlines near. Then something — just about anything — goes wrong. It doesn't have to be big. Perhaps an associate submits a brief that is not exactly the way you wanted or your paralegal misinterprets your minimal instructions. Perhaps your client discloses information at the last minute that you should have been told on day one. Everyone quickly becomes the potential lightening rod for the angry stress reaction.
This is particularly likely if the competitive nature of litigation bleeds over into perfectionistic expectations. Unrealistic or unreasonable expectations cause fear ("maybe I'm not good enough to get this done for the client") and anger at others (associates, support staff) on whom you must depend but whom you inevitably perceive as letting you down. The fear of "failure" is difficult to tolerate and the stress symptoms that are your common personal reaction are on display.
Recognizing "Just" Behavior
Time and again, I've heard legal staff describe an attorney with words like, "Generally he's not a bad guy to work with. It's just that, when we're going to trial, he becomes a monster. He yells, won't tolerate the slightest mistake, and drives the support staff to tears." Or, I might hear, "She's a great lawyer. It's just that, when there's a critical transaction at stake, she becomes irritable and impatient. It is difficult to get direction and to know if you are on the right track. Everyone tiptoes around her."
Granted, it's hard to be civil when you're under stress. However, many of us have learned to use our mood as a smokescreen rationale to explain away recurring fits of iciness, sharp criticism, and periodic blasts of abrasive behavior. We know that we're not behaving cordially, yet we justify it with excuses like:
Yes, I shouldn't have called the opposing counsel a piece of slime, but she has tried my patience one too many times . . .
Yes, maybe I shouldn't have told my secretary he was as dumb as a doorknob, but if he would just quit peppering me with questions . . .
Yes, I should have called the client back a few days ago, but she acts like she's my only concern . . .
But do we excuse awful behavior as though "stress" is a problem that is out of our control? While it's undeniably more difficult for some people to govern their tempers or rages than it is for others, everyone can exercise control. For example, one strategy for learning to manage emotional energy can be seen as follows:
Acknowledge and feel the emotion rather than denying or minimizing it.
Listen to the information or feedback the emotion is giving to you.
Guide or channel the emotional energy into an appropriate, constructive response.
No matter how stressed, we can choose to respond with empathy and credibility. In fact, rather than an excuse for incivility, perhaps its time our stress becomes a signal to engage in a civil defense.
The Civil Defense
Civility is courtesy, dignity, decency and kindness. Courtesy is not a sign of less than fully committed advocacy; it is simply the mechanism by which lawyers can deal with daily conflict without damaging their relationships with their fellow lawyers and there own well being. We can be civil when we're aggressive, upset, angry and intimidating; we just don't have to be rude.
As George Washington would tell you, it's hard work. Throughout his life, he struggled with a hot temper and a sharp tongue. At the age of 16 Washington copied by hand a set of precepts: Rules of Civility and Decent Behavior in Company and Conversation." The overall focus was summed up in the first rule; "Every action done in company ought to be done with some sign of respect to those that are present." He also worked hard to manage his stress, monitor his behavior, and take responsibility when he fell off the civility wagon. In fact, much of George Washington's success can be attributable to his ability to manage his emotional energy.
Managing stress (and the problem behavior that comes with it) requires regular attention. Just as a diet and exercise program can help you lose weight, establishment of a plan for stress avoidance can help get you to incorporate behavior changes that can be comfortably incorporated into even a very busy attorney's daily routine. This plan requires a combination of action and insight:
Active stress management. Attorneys are great at rationalizing workaholism. We're even better at deferring rewards. But relief from stress will not come tomorrow unless you find some balance in your life today. For example:
Build in short "quality time" experiences into your daily routine - five minutes of "quiet time," a short jog a couple of times a week, or a longer ride home listening to some soothing music.
When you're working, do the hardest task you expect to do at the beginning of the day, prioritize, and learn to delegate effectively.
Socialize with other lawyers. Go to Bar luncheons, committee meetings, judicial receptions, and the like. It's easier to be nasty to a stranger than to a friend.
Take noncompetitive vacations. Stressed-out lawyers who take competitive or stressful "vacations" can return to work feeling no better than when they left. Be sure your vacations offset your work schedule; if you've just finished a six week trial, a climb to Mt. Everest is probably not the ideal vacation
Insightful behavior control. One smart person once said, 'when we are under stress we behave like ourselves but even more so.' If we tend toward angry out bursts, watch out; if we tend to withdraw - we go into our office, close the door, and "do it myself;" if we tend to be anxious, the anxiety symptoms will skyrocket. In short, communication under stress is an exaggeration of our normal communication style.
Learn to recognize your own signs and symptoms of stress and develop strategies for minimizing their impact; reschedule meetings or postpone appointments if possible and avoid making major life decisions.
Get feedback from others. Most of us are pretty inaccurate when it comes to self-evaluation. Find out how your communication, in stress and out of it, impacts those around you by using 360-degree evaluation as part of your self-development program.
Eliminate as much stress as possible. Do stress-reducing activities such as walking or listening to music. Talk over a stressful case with another lawyer; as much stress is created by our thoughts as by the reality of our situation and getting a second opinion
The Bottom Line
Chronically uncivil lawyers are a small fraction of those who practice law. However, without vigilance, the adversarial undertow of litigation can occasionally turn the most mannerly among us into the TV caricature of the nightmare attorney - calling each other names, flooding adversaries with unnecessary paperwork, refusing to offer simple courtesies.
It doesn't have to be that way. The practice of law has been described as hockey while wearing suits. If it is, we can take heart from the best hockey players. They, like the best lawyers, treat other players fairly and with civility. And they win without resorting to cheap shots.
Copyright 2003 Joni Johnston
Avoiding Incivility In Litigation
