Public and Civic Club Talks




INTEGRITY AND CIVILITY—AN ETHICALLY BALANCED PARTNERSHIP

[Talk given by John E. Enslen at Wetumpka Civic Center Elmore County Bar Association CLE Program on December 14, 2012 at 1:30 p.m.]


Here is a question that every lawyer should ask himself: “What kind of lawyer do I want to be?” I am not referring to practice area such as a criminal defense lawyer or a real estate lawyer or a bankruptcy lawyer or a domestic relations lawyer or an insurance defense lawyer, etc. I am talking about our practice style.

Let’s do an exercise. For your mind only, mentally list your opinion as to the top three most effective lawyers with whom you have dealt or watched, worked with or against. Perhaps the best test for determining the top three most effective lawyers is to ask yourself who you would personally hire if you needed to hire an attorney.

Now you can compare your mental list to the two basic lawyer stereotypes—the very good lawyer and the very bad lawyer. We are each some unique combination that fits between these two extreme stereotypes, and our position is subject to change in either direction depending on many variables, including the nature of the case we have accepted, our general disposition, the state of our health, the preparation time we have invested, etc.

[For sake of brevity, I am going to use the masculine term “he” when talking about our attorney stereotypes, but I could just as easily use the feminine pronoun “she” without changing the meaning or results.]

First the very good lawyer: He is the consummate professional. He respectfully plays his role as an advocate. He is prepared, groomed, and on time. His aim is to get results for his client, but he maintains a good rapport with opposing counsel. He is easy to work with. He is courteous. You can trust what he says. He has credibility with the judges. He is confident, but not arrogant. He can see both sides of an issue and will actually admit the weaknesses in his case. He settles cases where the facts and law do not clearly favor one party or the other. He has integrity.

Now let’s look at the very bad lawyer. I will refer to him as the “Mad-Dog” lawyer. You cannot trust him. You cannot advance your case through verbal discussions with him. You must deal with him in writing. He is not friendly and amiable. He engages in personal attacks. He writes nasty and confrontational letters for no reason. He characterizes his opponent’s position in the extreme with words like “absurd,” “asinine,” and “ridiculous.”

He will not stipulate to anything. He is slow to return phone calls. He is not accommodating with his calendar and will not agree to extensions of time. He has an over-elevated opinion of his own abilities.

The Mad-Dog lawyer views the rules of civil procedure as tools of obstruction. Relentless, meritless, and long-winded objections at depositions interfere with examination by opposing counsel. When asking questions himself, he can stretch a 30-minute deposition into two days if he thinks some advantage may be gained by the delay.

He shuffles the documents in discovery boxes and serves motion papers by placing them at the bottom of a discovery box with the hope that his opponent will not discover them until the time for responding has expired. He times the filing of his documents to make your life as miserable as possible. His bag of dirty tricks is bottomless. His motto is: “Real lawyers don’t cooperate.” In other words, he firmly believes you have to be a jerk in order to be a successful attorney.

Mad-Dog justifies his extreme and unprofessional behavior by claiming to aggressively represent the best interests of his client. He believes he is simply a vigorous advocate, and he relies on this approach as an overarching “litigation strategy.” He believes that uncivil behavior is a good settlement strategy. To the Mad-Dog lawyer, litigation is a game that you attempt to win at any cost regardless of the merits of your client’s case. In fact, he will cling to meritless positions on both the law and the facts to the very end. He takes a scorched earth approach to litigation.

A certain type of client, perhaps especially in domestic cases, actually looks for a Mad-Dog lawyer because either the client is more interested in a show composed of harassment and intimidation than in winning his case, or the client mistakenly believes that Mad-Dog lawyers are more successful because of their extreme aggression, as if the courtroom is a cage for extreme, anything-goes, tap out/knock-out fighting. In truth, Mad-Dog lawyers have little credibility with the judges who play the major role in determining who wins and who loses a case.

Unfortunately, the number of Mad-Dog lawyers is on the rise, and there is a temptation for attorneys to sink to the level of their competition—to “fight fire with fire.” Incivility creates more incivility. Pride and ego add more fuel to the fire. We can easily get caught up in the cycle.

Here is an actual ad from this week’s WSFA.com online news service: [hand out the attached ad showing personal injury attorney in boxing gloves]

Mad-Dog lawyers are best described by a deposition witness who had the unfortunate experience of being deposed by one. The witness described the experience: “On the day of my deposition, I was calm and good natured as I entered the conference room. I assumed that the event that was about to occur would be a reasonable, business-like inquiry into the truth. I was prepared to tell what I knew and to tell it honestly. What followed was a mental and emotional mugging. The deposing lawyer was alternatively rude, coercive, threatening, abusive, and insulting. His approach was to bait, belittle, and ridicule, even to the extent of mimicking my speech pattern. His venom was spewed at me and my counsel alike and led to bitter and vicious exchanges between all involved in this supposed search for the facts. Forty years in the business world had not prepared me for such treatment. Never have I come away from an experience with the disillusionment and revulsion that followed this exposure to the legal profession.” [Taken from article entitled “Christianity and the Mad Dog Litigator” by David Campbell, Clark Memorandum, Spring 1991, pp. 31-32.]

Such attorney conduct shocks a person of ordinary sensibilities. It rarely occurs in offices, or restaurants, or over backyard fences. Even opposing fans at Alabama vs. Auburn football games act better than this for the most part. But unfortunately, we see this far too often in litigation. Some lawyers apparently believe that zealous representation of one’s client requires unmitigated hostility toward one’s opponent and his legal representative.

My theme for today is a simple one that appeals to your own self-interest. It is this: Uncivil behavior, like that of Mad-Dog, does not pay well because it does not help you to be effective at your job. Here is another point. Not only will acting uncivilly make you less effective, it will also make you personally miserable. Mad-Dog lawyers do not experience a very high degree of job satisfaction.

Now, going back to our opening exercise, did you select lawyers whom you would tend to describe as constant professionals, or did you select lawyers whom you would tend to describe as Mad-Dog lawyers?

I hope you selected lawyers who you tend to describe as constant professionals, those that you would prefer to have as mentors.

We do not have to be jerks to succeed as a litigator. You don’t have to cover up an insecurity complex or a lack of confidence in yourself with over aggression. There is room in the practice of law for every lawyer, regardless of abilities, who treats other lawyers with respect. Let me make an analogy to the game of golf.

You have fairly good golfers and fairly bad golfers who play on the same course at the same country club. Sometimes circumstances put them together, playing in the same twosome, or threesome, or foursome. There is absolutely no problem with an inferior golfer playing with a superior gentleman golfer so long as the inferior golfer merely behaves like a gentleman. It’s perfectly all right if the inferior golfer takes two, three, or even four more strokes to finish the same hole.

The situation does not become unpleasant unless the inferior golfer acts ungentlemanly. That’s when it becomes intolerable to play in the same group with him. Let me explain ungentlemanly golf. Instead of inwardly and silently acknowledging to himself that he has an inferior golf game due to less experience or less practice time invested or less natural ability, he goes into an angry mode with every shot. He is fussing and cussing about almost every shot that he makes. He’s got some type of excuse for every wayward shot. If he would simply methodically and steadily press forward with his game and remain pleasant in his personality, then others are happy to play with him, despite his lesser abilities.

The behavior of Mad-Dog lawyers does not fall in a gray area of uncertainty, nor does it create deep, moral questions. Abusive behavior toward opposing parties and counsel, far from being required by the profession, is disapproved by the rules of professional conduct, but more importantly, it is disapproved by fellow members of the bar and judges. Acrimony does not serve the client’s best interests, and always costs the client money. To those of us who profess to follow any type of moral code in life, such anti-social conduct conflicts with our values.

I have my doubts about the bar association’s or the Alabama Supreme Court’s ability to formulate or enforce detailed rules that will adequately and effectively protect against Mad-Dog lawyers. I suppose part of the problem is that you simply cannot outlaw defective personalities, and you cannot control how a lawyer perceives his allegiance to his client, and the more Mad-Dog lawyers there are, the less they will be deterred by peer pressure.

I will share two fairly general statements in our rules of professional conduct that may have application in some limited circumstances. However, I must admit that after sitting on disciplinary panels for several years, I never saw a case based exclusively on a violation of one of these two general rules:

Rules 8.4 (c) and 8.4 (d) of the Alabama Rules of Professional Conduct state: “It is professional misconduct for a lawyer to: (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice.”

There are three voluntary pledges or creeds or codes that are available to Alabama lawyers. These voluntary, unenforceable commitments exist outside of, and extend beyond, our responsibility to obey the formal rules of professional conduct that have been placed upon us. Lawyers do not tend to voluntarily impose greater burdens of ethical behavior on themselves. They are much more likely to look for loopholes in the rules of professional conduct which over time have come to sound more and more like a criminal code. [hand out the three attached pledges/creeds/codes one at a time and discuss]

We have spent most of our time on “Mad-Dog.” I want to wrap up our time together by mentioning how our profession is uniquely different from other professions, and how being a good lawyer will better prepare us for life’s challenges than any other profession, in addition to understanding the analytical thought process that takes you directly to the controlling issue in a situation. The additional advantage we have comes in the form of adversity. The advantage based on adversity that inures to those of our profession is increased as we immerse ourselves in preparation. Of course, preparation is always the key to successfully responding to adversity. Preparation can transform an ordinary man into a genius, and the lack of it will keep an ordinary man an ordinary man.

In the interest of time, I will compare our profession as attorneys with only four other professions to demonstrate my point, but we could make the comparison with any other profession. Let me start with architects.

Suppose that an architect whom we will call Joe Architect has worked on the design of a new high-rise office building and has been called upon to present his design to the board of directors of the corporate owner of the proposed building for approval. Suppose Joe has just completed making his elaborate PowerPoint presentation to the board and has smoothly demonstrated his beautiful scale model of the building. The architect’s presentation, as usual, goes uncontested. There is a total absence of any real critical review of his plan by a fellow professional architect. Only a few polite questions have been asked by members of the board—all softball questions.

Now suppose further that at the end of the architect’s presentation, another licensed architect appears, stands, and addresses Joe and the members of the board, making remarks like this, which by tone and demeanor sound convincing:

“Joe, your design has several fatal flaws beginning with the fact that it is clearly structurally unsound. I cannot believe you are taking such a ridiculous approach to the design of this building. It is statistically inevitable that within less than two years of construction your building will totally collapse under its own weight. To get support for your faulty design, you have recklessly stated facts to this board that are totally untrue. Your motivation behind this design is obvious to any reasonably perceptive inquirer. You are merely padding your own pocket based on all of the unnecessary and cost-prohibitive frills you have added to your proposal. If your design is allowed to stand, you will place every member of this board at an extreme risk of liability and you will subject large numbers of the general public to a horrific death or serious permanent personal injury. Your work is the product of neglect and sloppiness, pure and simple. You need to go back and do your homework and quit misleading this august body down a dangerous road to utter and complete failure. This board should summarily reject your plan.”

Do you see how the work of our profession is different? More tested? More scrutinized? More examined? More attacked? More criticized? More analyzed? More mischaracterized? There is no other profession that has such a stringent, built-in review process. There is no other profession that is so centered upon an adversarial process. We must be prepared to calmly defend every claim that we make.

The positions we take with judges and juries are regularly referred to by opposing counsel with adjectives like stupid, ignorant, fraudulent, warrantless, incredulous, deceitful, dishonest, contrived, meritless, and utterly without foundation in law or fact. In other words, we are told that we do not know what we are talking about.

Without going into as much detail as I did with the architect, imagine a hypothetical where a physician is actually called upon to vigorously defend his diagnosis of his patient and his plan for treatment. Physicians are so free of such an adversarial process, and their decisions are so routinely uncontested that they naturally develop a God complex. In fact, the litigation arena is the only place where a doctor’s opinion is questioned. Six doctors a quarter do not lose their license as a result of discipline imposed by their peers, as do attorneys.

What if another doctor were to address the same patient in the presence of the treating doctor and explain how the treating doctor is about to kill or harm the patient with an erroneous diagnosis and harmful treatment?

What if every time a minister of the gospel preached a sermon on some aspect of Christian belief, a second preacher arose at the conclusion of the sermon and provided from the same pulpit an apparently reasoned view that the first preacher was heretically leading the congregation straight to hell.

What if every time that a certain military officer commanded his troops to execute a particular battle plan, a second military officer would immediately arise and critique that plan, adding facts and historical examples that demonstrated the utter futility of the original battle plan that will surely fail in its mission.

I have briefly compared our profession to only four other professions, but I believe you can discern how our profession is the most rigorous of all the professions. More is required of us. We live under a constant strain and pressure. Our claims and positions are under constant attack. We must be able to ably defend our positions against aggressive and sometimes vicious attacks at every stage of our work.

Through preparation and practice, in other words plain hard work, and accepting the right cases, we can build within ourselves a quiet confidence that cannot be shaken. If we are consistent in our diligent efforts, the courts will develop a trust in our pronouncements that is invaluable in our quest for effectiveness.

I have one last parting thought for you. It deals with balance in your life. As great as being a lawyer may be, please don’t let professional intensity cause you to falter in your own family life. Your profession is an honorable way to serve others and to make a good living, but it does not always need to be your most important focus in life. As you grow older, you will come to realize that your family will be your lasting legacy. Your impact in bringing about lasting changes in the law for the better will be minimal. A good day in court cannot compensate for a bad day at home. Winning points at the office round table is not as vital as sharing points at the evening supper table. If you are truly looking for lasting happiness and real satisfaction, then pay close attention to your family life.

Thank you for your interest.




[handouts]

Alabama State Bar Lawyer’s Creed


To my clients, I offer faithfulness, competence, diligence and good judgment. I will strive to represent you as I would want to be represented and to be worthy of your trust.

To the opposing parties and their counsel, I offer fairness, integrity and civility. I will seek reconciliation and, if we fail, I will strive to make our dispute a dignified one.

To the courts, and other tribunals, and to those who assist them, I offer respect, candor and courtesy. I will strive to do honor to the search for justice.

To my colleagues in the practice of law, I offer concern for your welfare. I will strive to make our association a professional friendship.

To the profession, I offer assistance. I will strive to keep our business a profession and our profession a calling in the spirit of public service.

To the public and our systems of justice, I offer service. I will strive to improve the law and our legal system, to make the law and our legal system available to all, and to seek the common good through the representation of my clients.

(Approved by the Alabama Board of Bar Commissioners 4/10/92)


Alabama State Bar Code of Professional Courtesy


1. A lawyer should never knowingly deceive another lawyer.

2. A lawyer must honor promises and commitments made to another lawyer.

3. A lawyer should make all reasonable efforts to schedule matters with opposing counsel by agreement.

4. A lawyer should maintain a cordial and respectful relationship with opposing counsel.

5. A lawyer should seek sanctions against opposing counsel only where required for the protection of the client and not for mere tactical advantage.

6. A lawyer should not make unfounded accusations of unethical conduct about opposing counsel.

7. A lawyer should never intentionally embarrass another lawyer and should avoid personal criticism of another lawyer.

8. A lawyer should always be punctual.

9. A lawyer should seek informal agreement on procedural and preliminary matters.

10. When each adversary proceeding ends, a lawyer should shake hands with the fellow lawyer who is the adversary; and the losing lawyer should refrain from engaging in any conduct which engenders disrespect for the court, the adversary or the parties.

11. A lawyer should recognize that adversaries should communicate to avoid litigation and remember their obligation to be courteous to each other.

12. A lawyer should recognize that advocacy does not include harassment.

13. A lawyer should recognize that advocacy does not include needless delay.

14. A lawyer should be ever mindful that any motion, trial, court appearance, deposition, pleading or legal technicality costs someone time and money.

15. A lawyer should believe that only attorneys, and not secretaries, paralegals, investigators or other non-lawyers, should communicate with a judge or appear before the judge on substantive matters. These non-lawyers should not place themselves inside the bar in the courtroom unless permission to do so is granted by the judge then presiding.

16. A lawyer should stand to address the court, be courteous and not engage in recrimination with the court.

17. During any court proceeding, whether in the courtroom or chambers, a lawyer should dress in proper attire to show proper respect for the court and the law.

18. A lawyer should not become too closely associated with a client’s activities, or emotionally involved with a client.

19. A lawyer should always remember that the purpose of the practice of law is neither an opportunity to make outrageous demands upon vulnerable opponents nor blind resistance to a just claim; being stubbornly litigious for a plaintiff or a defendant is not professional.

(Approved by the Alabama Board) of Bar Commissioners’ on 4/10/92)


Alabama State Bar Pledge of Professionalism


I believe that our judicial system binds together the fabric of our democracy. I believe that, in order to maintain our judicial system, lawyers must maintain a high degree of professional courtesy and decorum. I believe that everylawyer has a professional duty to maintain a courteous and collegial atmosphere in the practice of law. I believe that a courteous and collegial atmosphere begins with me.

Therefore, I will
• never knowingly deceive another lawyer.
• honor promises and commitments made to another lawyer.
• make all reasonable efforts to schedule matters with opposing counsel by agreement.
• maintain a cordial and respectful relationship with opposing counsel.
• seek sanctions against opposing counsel only where required for the protection of my client and not for mere tactical advantage.
• not make unfounded accusations of unethical conduct about opposing counsel.
• never intentionally embarrass another lawyer and will avoid personal criticism of another lawyer.
• attempt to always be punctual.
• seek informal agreement in procedural and preliminary matters.
• recognize that advocacy does not include harassment.
• recognize that advocacy does not include needless delay.
• shake hands with the opposing counsel at the close of adversarial proceedings and will refrain from engaging in any conduct which engenders disrespect for the court, my adversary or the parties.
• be ever mindful that any motion, trial, court appearance, deposition, pleading or legal technicality costs someone time and money.
• never have ex parte communications with the court.
• stand to address the court, be courteous and not engage in recrimination with the court.
• dress in proper attire during any court proceeding, whether in the courtroom or chambers, to show proper respect for the court and the law.
• not become too closely associated with my client’s activities, or become emotionally involved with my client.
• always remember that the purpose of the practice of law is neither an opportunity to make outrageous demands upon vulnerable opponents nor blind resistance to a just claim; being stubbornly litigious for a plaintiff or a defendant is not professional.

This pledge is adapted from the Alabama State Bar Code of Professional Courtesy adopted by the Board of Bar Commissioners on April 10, 1992.


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