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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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  2. Don't believe me, listen to Pacino: https://www.youtube.com/watch?v=z6bC9w9cH-M

  3. Law school is social control the goal to produce a social product. As such it began after the Revolution and has nearly ruined us to this day: "“Scarcely any political question arises in the United States which is not resolved, sooner or later, into a judicial question. Hence all parties are obliged to borrow, in their daily controversies, the ideas, and even the language, peculiar to judicial proceedings. As most public men [i.e., politicians] are, or have been, legal practitioners, they introduce the customs and technicalities of their profession into the management of public affairs. The jury extends this habitude to all classes. The language of the law thus becomes, in some measure, a vulgar tongue; the spirit of the law, which is produced in the schools and courts of justice, gradually penetrates beyond their walls into the bosom of society, where it descends to the lowest classes, so that at last the whole people contract the habits and the tastes of the judicial magistrate.” ? Alexis de Tocqueville, Democracy in America

  4. Attorney? Really? Or is it former attorney? Status with the Ind St Ct? Status with federal court, with SCOTUS? This is a legal newspaper, or should I look elsewhere?

  5. Once again Indiana has not only shown what little respect it has for animals, but how little respect it has for the welfare of the citizens of the state. Dumping manure in a pond will most certainly pollute the environment and ground water. Who thought of this spiffy plan? No doubt the livestock industry. So all the citizens of Indiana have to suffer pollution for the gain of a few livestock producers who are only concerned about their own profits at the expense of everyone else who lives in this State. Shame on the Environmental Rules Board!

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