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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. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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