Washington Lawyer - January/February 2025 - 10

FEATURE
the media, " I want the people ... [who] come to court to get a fair shake,
to have their day in court, to have an unbiased trier of fact. "
The responsibility to ensure fairness and an interest in preserving the
dwindling public confidence in the legal system fuel many of the efforts
currently being undertaken to increase civility in the nation's courts. Alec
Farr, a partner at Perkins Coie LLP, points to pressure from clients and the
many interactions that take place outside of the courtroom as two factors
contributing to incivility.
" Clients are in a very difficult situation, " says Farr, president of the
William B. Bryant American Inn of Court, an organization of litigators,
judges, and law students that seeks to foster excellence in professionalism,
ethics, civility, and legal skills. " They're under a lot of
pressure, especially in the kind of litigation that I do. "
Ironically, civil litigation can be one of the least civil areas of practice,
says Farr. " I've been doing this about 30 years now, and for as
long as I've been a civil litigator, I have always heard that there was
a problem with civility and a decline in civility in the civil litigation
process, " he says. Often, these uncivil encounters happen in depositions,
outside the view of the court, when opposing counsel's witness
is breaking under examination.
Farr views the loss of composure by an opponent as a sign of his success.
" How does the old saying go? The first person to raise their voice is losing
the argument, " he says.
TENACITY VS. INCIVILITY
Farr keeps copies of classic manuals on military strategy on his desk -
Carl von Clausewitz's On War and Sun Tzu's The Art of War - to remind
himself to conserve his and his clients' energies while allowing the opponent
to spend theirs frivolously. " Give your enemy a golden bridge to
withdraw somewhere you want him to withdraw to ... if he is busy destroying
himself, don't interfere, " Farr says, paraphrasing Sun Tzu.
For Farr, there is a distinction between tenacity and incivility. " I think clients
want a litigator that's going to make the other company pay and,
yes, I think anybody who hires me is going to get that, but it's going to
be done with civility, with a high level of professionalism, " says Farr,
whose practice regularly involves him in high-stakes litigation. " I can
make witnesses say things they don't want to say without raising my
voice and without being uncivil. There's no legal argument that requires
you not to be civil. "
A
lthough vulgarity or rudeness, in itself, is rarely
the basis of disciplinary action for legal professionals,
lack of civility in the law can have
serious consequences.
Last September, for example, a Michigan probate judge was removed from
her docket when the probate court administrator released recordings of
the judge making derogatory remarks about Black people, using a gay slur,
describing sexual encounters in intimate detail, and referring to herself as
" a new racist. " The alleged statements did not take place in open court, but
they provided cause for concern for the whistleblowing attorney, telling
10 WASHINGTON LAWYER
* JANUARY/FEBRUARY 2025
Farr understands that clients are under immense pressure, which can lead
them to resist requests, including basic scheduling requests, from opposing
counsel - until Farr explains to his clients that such a posture can
have a negative impact on the court's perception of them. " All that will do
is undermine our credibility with the judge because the opposing attorney
will just go to court, and then we will look foolish for having opposed
their scheduling motion, " Farr says. " I'm as aggressive on the merits as any
lawyer you will meet, but battling over a scheduling accommodation is
usually a futile gesture and could actually hurt your case. "
Farr says a larger part of attorneys' role as advocates is to help their clients
think strategically. " Litigation involves a long conflict that's going to
have a series of engagements, and you have to educate the client about
how that's going to play out and how a lack of civility, a lack of reasonableness,
can interfere with you accomplishing your own goals, " Farr exImages:
iStock
MAKING THE
CASE FOR
CIVILITY
MANNERS
MATTER
By Jeremy Conrad
s
Washington Lawyer - January/February 2025

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