Washington Lawyer - January/February 2025 - 13

FEATURE
exchanges are worth the effort because they increase the chances of
finding a durable resolution that satisfies all parties.
" Nobody is saying that you have to reach agreement on a dispute, "
Rosenberg says. " That's why the courts are there. But you certainly need
to be civil in the process and try because it is likely better for your client
if you can work it out; otherwise, you get in queue in the court system
and it could be awhile. You may even have your own way of resolving an
issue that the court simply cannot do. We are limited in what we can do,
which is why I'm a proponent of trying mediation or other forms of alternative
dispute resolution, for example. "
PRACTICE & TEACH
In maintaining civility in her courtroom, Rosenberg communicates the
respect and seriousness with which she takes matters. " I'm always prepared,
so the participants know that I've read everything they've submitted, "
she says. " I allow everyone to be heard. I look at the person speaking
and try to signal that I'm listening carefully. I ask questions. I don't
raise my voice. I don't interrupt when someone is speaking. I don't permit
counsel to speak directly to one another in an antagonistic way.
I don't tolerate rude behavior and will address counsel immediately if
it happens outside the hearing of a jury, if in a jury trial. "
Rosenberg and Bloom have found that those who have taken the CD3
program are often eager to discuss civility, including in the context of
differing cultural expectations. Rosenberg says that momentary lapses in
before responding. I
hadn't learned yet the importance
of slowing down
the news cycle. "
MERRIL HIRSH
Academy of Court-Appointed Neutrals
Hirsh is among those who
believe that civility among
lawyers has been in decline.
He attributes it in
part to the globalization
and remoteness of legal
practice. " In a local community,
even in large cities,
what goes around
comes around. Everybody
knows each other. That
can be negative in some ways, but there was a sense of local community
among the bar where people perceived civility to be an important
part of the profession, " he says. Repeat players have a greater incentive
to behave appropriately, and lawyers who appear only once in a jurisdiction
may not feel as incentivized to observe norms of civility, Hirsh
says.
Hirsh also attributes diminished courtesy in the legal profession in part
to an increasing emphasis on winning, perhaps taking the adversary
system too far. " There is a whole generation of people who think the
most important thing in a lawyer is to win and not to serve, " he says.
a person's behavior may be due to individual circumstances. " People are
not all the same and they bring their own views, their own circumstances,
and at times their own baggage to a situation, " she says. " So, we must
always first stop and think before reacting and try to understand what
might be going on with [the other] person. In the face of relating to
people who may be different than us, we must always maintain our own
dignity, integrity, and civility. "
Todd, the D.C. Bar's legal ethics expert, says an attorney's uncivil behavior
may be an indicator of other practice-related problems. Mental
health, drug or alcohol addiction, and other attorney wellness issues
may negatively impact an attorney's ability to maintain civility under
pressure. " The [D.C. Bar] Lawyer Assistance Program has a number of terrific
resources, and they can help with issues relating to mental health,
substance abuse, and even just work-life stress management, " she says.
Citing a 2013 Harvard Business Review article titled " The Price of Incivility, "
Rosenberg reminds attorneys that uncivil behavior comes with a very
real cost. The article notes that workers who experienced incivility decreased
both time and effort spent on their work, experienced declines
in their performance and commitment to their organization, left the job,
or took out their frustrations on customers. " So, our takeaway is that
there's a tangible price for incivility, " Rosenberg says, " and that we all
need to be mindful of the need to practice civility, and to teach it. "
Reach D.C. Bar staff writer Jeremy Conrad at jconrad@dcbar.org.
Some may consider these notions of civility as quaint, romanticized, or
even a luxury that some clients cannot afford or will not tolerate. This is
why Hirsh is focused on thinking about incentives, pointing out examples
of how courts may be able to shift them.
For instance, in the Southern and Eastern Districts of New York, judges
advise parties to consider requesting an in-person or telephone conference
with the court before filing a motion to compel. Practices like
this can have the benefit of resolving the dispute before it can grow in
complexity and intensity, but it also can have a salutary effect on the
litigants.
Hirsh says that a judge involved in these discussions can deter litigants
from pursuing wasteful or abusive behavior. Through such conferences,
a judge " can try to defuse the cycle and tell the parties, 'Look, here's
what I want to hear,' " he says. For Hirsh, this is just one of many ideas to
manage the circumstances of litigation and change the incentives for
lawyers.
For lawyers in private practice, preserving civility also means being
willing to challenge one's clients. " You signed up for a profession that's
a public service, " Hirsh says. " It doesn't mean you don't listen to your
client. It means you don't fuel your client's worst instincts. It means
putting your client in a position to make an intelligent decision. "
Lloyd Liu is a partner at BLL LLP where he focuses on white-collar defense,
government investigations, and complex civil litigation
JANUARY/FEBRUARY 2025 * WASHINGTON LAWYER 13
Academy of Court-Appointed Neutrals
Washington Lawyer - January/February 2025

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