DEALING WITH INCIVILITY

The Issue:

Rule 1.3 of the Massachusetts Rules of Professional Conduct states that all attorneys “should represent a client zealously within the bounds of the law.”  While some lawyers believe zealous advocacy is necessary to represent a client effectively, others believe it is an excuse for attorneys to be uncivil.  In fact, many states, including New York and New Jersey, have removed any reference to zealous advocacy from their ethical rules, suggesting that zealous advocacy is not encouraged.

Litigation style plays a part in this as well.  Some attorneys build their careers on a reputation as aggressive and relentless, even priding themselves as pit bulls.   These lawyers presumably believe this aggressive behavior will be successful in the courtroom and attract clientele.   However, studies suggest this this style is counter-productive and inefficient.  Andy Mergendahl of The Lawyerist opines, “To be an effective lawyer, you need to win people over. You do that by being prepared, courteous, and firm. You don’t do it by being aggressive.” (http://lawyerist.com/aggressive-lawyers-often-finish-last/).  It also seems that clients have clear preferences about their attorney’s style.  Some want pit bulls.  Some want calm professionalism.  Some want big firm images and some want some small firm intimacy and service.  Some want an amicable collaboration and some want to declare war.

The Recommendation:

So how do we deal with situations where the other side is employing “Rambo” or “Sherman tank” tactics?   We think it’s important to stick to the plan and not let a hostile party dictate the way the case is handled.  While aggressive, rude behavior may be infuriating and feel abusive, it does not require that we respond in kind.   Doing so will perpetuate the behavior, and at worst, drag us into an unnecessary battle.  Our ideal approach is to remain calm, polite and professional, while also firm and confident in our position.  Being pushed into war seldom turns out well and makes a high conflict situation substantially more stressful.

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