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DTCI: Take a moment to breathe before hitting 'send'

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dtci-thornburg-robertAt the time I am writing and submitting this column to the Indiana Lawyer, Indiana’s primary election is only days away. One can’t help but notice one political ad after another airing in ever-increasing frequency. Whether these advertisements are deemed “attack ads,” “issue spots” or “comparisons,” one thing is clear: the grainy black-and-white photographs and videos of the political opponent with the menacing voice-over intend to portray the opponent in an unflattering light. Indeed, some would claim in an inaccurate or misleading light. The heated and vitriolic rhetoric employed by politicians and commentators on the daily talk shows seems to be on the rise. Many believe that this ever-heated and impolite discourse has seeped out into the legal profession. Indeed, many in the legal community have begun to posit that incivility is on the rise, particularly in regard to email communication. I for one certainly hope not.

Webster’s New Universal Unabridged Dictionary, 2nd Edition, defines civility as “a polite act or utterance.” Merriam-Webster’s online dictionary defines it as “civilized conduct; especially: courtesy, politeness.” Shouldn’t civility in the legal profession, however, mean more than simply being courteous or polite?

I suspect most would agree that in our adversarial system, civility should be synonymous with professionalism. It must mean that in addition to being polite, courteous and respectful, we must not intentionally belittle, demean or unnecessarily attack our colleagues, adversaries, any party, witness, the judiciary or the judicial staff involved. We must strive to use appropriate language, volume and tone to advance our arguments and our clients’ positions and to disagree with our opponent or the court. Simply stated, treat everyone with consideration and respect, even during heated debates and contentious moments at deposition, hearing or trial.

Oft cited in defense of incivility is the duty to act with reasonable diligence and promptness. (See Indiana Professional Conduct Rule 1.3.) It is frequently said that an attorney has an obligation to zealously represent his clients. Reasonable diligence, promptness and zealous advocacy, however, do not and should not require one to be impolite or uncivil. In fact, the second sentence of the Preamble to Indiana’s Rules of Professional Conduct reads, “Whether or not engaging in the practice of law, lawyers should conduct themselves honorably.” And the Official Comment to Rule 1.3 explicitly provides, “The lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.” (Prof. Cond. R. 1.3, Comment [1].)

We live in an age where instantaneous communication is the norm. Time to reflect and respond after considered deliberation seems to be vanishing. It is increasingly expected that we respond immediately to every voicemail or email we receive. Indeed, even correspondence is increasingly being sent via facsimile or as an attachment to an email.

Most can recite examples of email being a large source of incivility in the practice. Email incivility can be avoided. Clicking the “send” button before allowing time for reflection can escalate a contentious situation. In fact, all can easily recall a situation where something became more contentious because of email. The next time – before hitting “send” – give yourself some space and time to deliberate and to let the emotion drain. Type the message, but let it sit. Return to the message later, reread it, and then hit “send” after some time for reflection and consideration. Even consider having a respected colleague read it to ensure that your tone is correct. Take a breath before hitting “send.” In this election year filled with negative ads, speeches and attacks, let us all strive to disagree when necessary, with respect and without being disagreeable.•

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Robert B. Thornburg is a member in the Indianapolis office of Frost Brown Todd and sits on the DTCI Board of Directors. The opinions expressed in this article are those of the author.
 

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  1. It really doesn't matter what the law IS, if law enforcement refuses to take reports (or take them seriously), if courts refuse to allow unrepresented parties to speak (especially in Small Claims, which is supposedly "informal"). It doesn't matter what the law IS, if constituents are unable to make effective contact or receive any meaningful response from their representatives. Two of our pets were unnecessarily killed; court records reflect that I "abandoned" them. Not so; when I was denied one of them (and my possessions, which by court order I was supposed to be able to remove), I went directly to the court. And earlier, when I tried to have the DV PO extended (it expired while the subject was on probation for violating it), the court denied any extension. The result? Same problems, less than eight hours after expiration. Ironic that the county sheriff was charged (and later pleaded to) with intimidation, but none of his officers seemed interested or capable of taking such a report from a private citizen. When I learned from one officer what I needed to do, I forwarded audio and transcript of one occurrence and my call to law enforcement (before the statute of limitations expired) to the prosecutor's office. I didn't even receive an acknowledgement. Earlier, I'd gone in to the prosecutor's office and been told that the officer's (written) report didn't match what I said occurred. Since I had the audio, I can only say that I have very little faith in Indiana government or law enforcement.

  2. One can only wonder whether Mr. Kimmel was paid for his work by Mr. Burgh ... or whether that bill fell to the citizens of Indiana, many of whom cannot afford attorneys for important matters. It really doesn't take a judge(s) to know that "pavement" can be considered a deadly weapon. It only takes a brain and some education or thought. I'm glad to see the conviction was upheld although sorry to see that the asphalt could even be considered "an issue".

  3. In response to bryanjbrown: thank you for your comment. I am familiar with Paul Ogden (and applaud his assistance to Shirley Justice) and have read of Gary Welsh's (strange) death (and have visited his blog on many occasions). I am not familiar with you (yet). I lived in Kosciusko county, where the sheriff was just removed after pleading in what seems a very "sweetheart" deal. Unfortunately, something NEEDS to change since the attorneys won't (en masse) stand up for ethics (rather making a show to please the "rules" and apparently the judges). I read that many attorneys are underemployed. Seems wisdom would be to cull the herd and get rid of the rotting apples in practice and on the bench, for everyone's sake as well as justice. I'd like to file an attorney complaint, but I have little faith in anything (other than the most flagrant and obvious) resulting in action. My own belief is that if this was medicine, there'd be maimed and injured all over and the carnage caused by "the profession" would be difficult to hide. One can dream ... meanwhile, back to figuring out to file a pro se "motion to dismiss" as well as another court required paper that Indiana is so fond of providing NO resources for (unlike many other states, who don't automatically assume that citizens involved in the court process are scumbags) so that maybe I can get the family law attorney - whose work left me with no settlement, no possessions and resulted in the death of two pets (etc ad nauseum) - to stop abusing the proceedings supplemental and small claims rules and using it as a vehicle for harassment and apparently, amusement.

  4. Been on social security sense sept 2011 2massive strokes open heart surgery and serious ovarian cancer and a blood clot in my lung all in 14 months. Got a letter in may saying that i didn't qualify and it was in form like i just applied ,called social security she said it don't make sense and you are still geting a check in june and i did ,now i get a check from my part D asking for payment for july because there will be no money for my membership, call my prescription coverage part D and confirmed no check will be there.went to social security they didn't want to answer whats going on just said i should of never been on it .no one knows where this letter came from was California im in virginia and been here sense my strokes and vcu filed for my disability i was in the hospital when they did it .It's like it was a error . My ,mothers social security was being handled in that office in California my sister was dealing with it and it had my social security number because she died last year and this letter came out of the same office and it came at the same time i got the letter for my mother benefits for death and they had the same date of being typed just one was on the mail Saturday and one on Monday. . I think it's a mistake and it should been fixed instead there just getting rid of me .i never got a formal letter saying when i was being tsken off.

  5. Employers should not have racially discriminating mind set. It has huge impact on the society what the big players do or don't do in the industry. Background check is conducted just to verify whether information provided by the prospective employee is correct or not. It doesn't have any direct combination with the rejection of the employees. If there is rejection, there should be something effective and full-proof things on the table that may keep the company or the people associated with it in jeopardy.

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