United States: What's Good For Business? Outside Counsel Who Embrace Professionalism, Civility

Last Updated: December 15 2016
Article by Armando G. Hernandez and Paul Lipton

While the cause and reasons for the undesired increase in incivility plaguing the legal profession are issues for debate, it is clear that the tide continues to rise both in the general population and within the legal profession.

An April 2016 survey conducted by the Associated Press-NORC Center for Public Affairs Research found 75 percent of Americans think manners and behavior have deteriorated in the United States over the past several decades.

The law profession has not avoided this deterioration as noted by Jane Reardon of the Illinois Supreme Court Commission on Professionalism Blog, 2Civility in July 2015, who wrote, "Anyone who is in the ring with lawyers would agree that there has been an increase in aggressiveness, also characterized as incivility."

Numerous studies and articles point to the fact that incivility and unprofessional behavior are a detriment to a company's bottom line.

"Incivility is expensive, and few organizations recognize or take action to curtail it," Christine Porath and Christine Pearson wrote in "The Price of Incivility," published in the Harvard Business Review in 2013. According to a 2010 survey by Weber Shandwick and Powell Tate in partnership with KRC Research, 69 percent of Americans have either stopped buying from a company or have re-evaluated their opinions of a company because someone from that company was uncivil in their interaction.

Companies willing to buck these trends and put forth professionalism and civility on all fronts will stand as pillars in an age of declining standards. The legal departments of organizations are uniquely situated to help companies make such a change. Here are four reasons to focus on civility in legal departments and when hiring outside counsel.

1. Outside counsel is a reflection of the company's corporate culture

Much has been written about a company's ethical or moral compass. The tenet is that when a company's ethical compass points "true north," the company is more likely to be successful. The company's employees trust one another and management, the customers trust the company and so on. As has been witnessed by the woes of many major companies as of late, sooner or later there is a price to pay for setting aside the compass. Having outside counsel that abides by the rules and civility enhances corporate culture and reputation.

Professionalism in its simplest form really comes down to just doing the right thing. Are you acting in a way that promotes a greater good or only the quarterly report? In the end, it is critical to have a greater purpose to survive. Short-term gains are just that and do not result in longevity for any organization, person or litigation.

2. Focus on professionalism and civility keeps litigation costs down

Unprofessional behavior shows itself in many forms. From delaying communications and fighting over every piece of discovery to sending unnecessary amounts of email all simply delay a case without really affecting the end result. In these cases, actions such as these inflate budgets and increase the cost of litigation. In the end, look for counsel that provides timely communication, keeps in-house counsel informed and moves the case forward without unnecessary delays.

If a case is meant to be tried, it will try itself on the facts and there is no need to gain small tactical advantages. That only creates antagonism and delays the process. The goal should be for each side to put its best case forward. There is no sense in delaying to get to inevitable moment.

3. Civil behavior results in less stress on complex litigation matters

Working in an antagonistic environment where opposing counsel is viewed as an enemy or is dehumanized creates more stress for all involved with the case and is the breeding ground for discourse. More stress does not result in better outcomes in any situation. Whomever the person—opposing counsel, witness, defendant, plaintiff--the person deserves to be treated with decency.

While technology has enhanced our work environments in so many positive ways, it also reinforces a lack of personal connections which can exacerbate this issue. It is very easy to send off a quick, heated response to an e-mail, especially when contentious personalities try and bait you into an impulse reaction. Not only does this result in more stress for everyone, but may also not bode well when an impulse reaction gets attached as an exhibit to a motion before the court.

Instead, communication should go through a cycle of analysis and review. Many attorneys struggle with that, especially the younger generation which is accustomed to instantaneous communication and never lived through a time when letters were written or dictated before typed, reviewed and mailed.

Respectful, diplomatic communication is the best tool for resolving issues. Being respectful and professional yields less stress and burnout.

4. Professional and civil behavior result in better relationships with judges

Having counsel with a reputation for being respectful, reliable and credible only benefits the client. The legal system is overwrought with congested dockets. Bringing an entirely avoidable issue before a judge is sure to only irritate a judge who is already extremely busy and unnecessarily increase costs. It is important to only take things in front of the court that cannot be resolved without judicial intervention. Being able to stipulate and reach common grounds whenever possible is essential. In addition, judges and lawyers know when an attorney has a credible reputation. Credibility can pay dividends down the road in close call situations or leveraging the client's positions.

Originally published in the Daily Business Review, December 7, 2016.  

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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