In the late ’80s and early ’90s, Steven Covey’s “The 7 Habits of Highly Effective People” was everywhere. It was on every bestseller list and in every bookstore. “7 Habits”-themed stores were popping up in shopping malls. Even President Bill Clinton consulted with Covey on management.
I was a teenager when the “7 Habits” phenomenon arose and, at first, I thought it was cheap, self-help nonsense. But when a copy of the book landed on my dad’s bedside table, that was endorsement enough to warrant at least a skim. To my surprise, the book made points that remain with me to this day.
One anecdote stands out. Covey tells the story of a time when his son was really flaking out. (Being an extremely flaky teenager myself, I may have paid extra attention to this anecdote.) So Covey had to talk to his son, right the ship. He realized he could have delivered a blistering lecture and demanded better performance in school and better behavior at home. But he knew what would happen: His son would get defensive and the whole encounter would be useless.
Covey decided to put aside his more immediate goal and focus on his son. He chose to get a better sense of what was going on in his son’s life and really listen. Only then — only with this foundation laid — could he have a real talk with his son about where his life was heading. And that’s essentially what happened. Covey put in extra time listening and just being present for his son. Then, with this foundation, he was able to have a genuine conversation about his son’s choices.
This anecdote reflects the whole thrust of Covey’s book. We want things quickly and we act reflexively. But it’s far more effective to put in time building relationships, working on understanding, and acting with intention. Then we can be more effective in relationships and at work. The same ideas apply to civility in the legal profession. It’s not something you can just turn on with a flip of a switch. The lawyers who are truly civil — and make civility work for their clients — put in time building relationships and working on understanding others. With that in mind, and in the spirit of the late Mr. Covey, here are the seven habits of highly civil lawyers.
1. A CIVIL LAWYER BUILDS RELATIONSHIPS WITH LAWYERS ON THE OTHER SIDE OF THE V.
Back when I was interviewing with firms seeking a summer associate, I met with a somewhat frightening senior partner from a firm in Cleveland. When asked if I had any questions, I decided to go bold. I asked him what, in his view, were the biggest ethical pitfalls of his practice.
He paused for so long I thought he was going to call security. Instead, he finally said, “You know, I sometimes take the v. too personally.”
I know now what he meant. We all take the v. too seriously sometimes, acting as if lawyers on our side always have access to the truth and justice while lawyers on the other side are barbarians groping in the dark. Of course, that’s not true. Civil lawyers remember that. Better yet, they join bar organizations where they work and develop relationships with lawyers from the other side of the v. Nothing combats incivility as effectively as knowing the names of your opponent’s children or hacking through a round of golf together. One of the best ways to develop civility, in other words, is to do what Covey did with his son: invest time.
2. A CIVIL LAWYER MANAGES THEIR TIME TO AVOID LAST-MINUTE, STRESS-INDUCING TIME CRUNCHES
Last-minute crises lead to stress and stress leads to incivility. (Okay, I’m paraphrasing Yoda’s “fear leads to anger” talk a little.) Civil lawyers leave themselves time to sit on drafts before filing. They have time to reflect. They have time to consult with colleagues and, when necessary, time to cool down. They avoid putting themselves into the pressure cooker of last-minute filings, an emotional stew that makes it easy to act thoughtlessly. They’re better able to use the soul-nourishing parts of their lives (time with family, reading, meditation, fishing, whatever) to maintain an equilibrium. It’s hard to get ahead of your workload. But staying ahead sets you up for civility.
3. A CIVIL LAWYER KNOWS THE STRENGTHS OF THEIR OPPONENT’S SIDE AND THE WEAKNESSES OF THEIR OWN
A quick path to incivility is believing that you have exclusive access to truth and justice. It’s hard for the righteous crusader to also be a civil crusader. Civil lawyers tend to understand the weaknesses in their own cases and the strengths in their opponents’ cases. That’s not just civil; it’s good lawyering. Sure, it can feel good to believe that your opponents personify evil and ignorance. But that doesn’t lead to better outcomes for your clients. In reality, it limits your ability to understand your opponent’s position — and that limits your ability to counter that position.
4. A CIVIL LAWYER DISTINGUISHES CASE-ALTERING DECISIONS FROM CASE-NEUTRAL DECISIONS
Just about every decision a lawyer makes fits into one of two boxes: decisions that can affect the outcome of a case or decisions that are unlikely to affect the outcome of a case. When an opponent wants to expand the record, that could affect the outcome. Saying “no” is reasonable. But when an opponent wants a couple extra weeks to file a brief? Not so much.
A civil lawyer distinguishes requests in the first category from those in the second. In doing so, a civil lawyer regularly improves relations between the parties without sacrificing their client’s position. Quite the contrary: Everybody needs an extension sometimes. Saying yes to an opponent lays the groundwork for similar accommodations later.
5. A CIVIL LAWYER REMEMBERS THAT THEY ARE CHALLENGING IDEAS, NOT INDIVIDUALS — USUALLY
It is hard not to take our practices personally, especially given how hard we all work. But in most cases, we’re not really battling each other; we’re debating ideas. So we often have a choice to make about how to phrase our arguments: Do we attack ideas or do we attack people? Do we write that the plaintiff tried to mislead the court in citing Smith v. Jones or do we write that the plaintiff’s argument mistakenly relies on Smith v. Jones? It’s a simple shift in phrasing, but it transforms a personal argument into one that really focuses on the business before the court. This kind of shift — speaking to the core issues and avoiding personal attacks — upholds a lawyer’s fundamental duty of professionalism and can only benefit their clients.
6. A CIVIL LAWYER ASSUMES THAT PEOPLE ARE ACTING IN GOOD FAITH (UNTIL THEY HAVE REAL EVIDENCE OF MISCONDUCT)
Many of us start to get a little cynical after we’ve practiced for a while. But if we reflect on our careers honestly, we’ll likely realize that most people we’ve encountered have not been deceitful or malicious. Of course there are some bad actors. But, by and large, the bar is full of people doing their honest, level best.
Civil lawyers keep that in mind, engaging with other lawyers as if they’re honorable people with good intentions. They certainly keep their radar attuned to any misbehavior that might harm their clients’ causes, but civil lawyers start with the presumption that people have good intentions. That creates more civil communication and less wasteful litigation.
7. A CIVIL LAWYER KEEPS WINS AND LOSSES IN PERSPECTIVE
Civil lawyers tend to take both wins and losses in stride, not putting too much stock in either. First, that’s just reasonable lawyering. A win or loss is rarely the final word. (As an appellate lawyer, that fact is my bread and butter.) Second, this perspective helps lawyers conduct themselves with civility throughout a proceeding. Rarely is litigation a life-or-death matter. You can be a zealous advocate while still resisting our tendency as human beings to blow things out of proportion.
CONCLUSION
The common thread here is one that Steven Covey identified back in the days of VCRs and trips to Blockbuster. Effective action — in this case, civil action — means planting seeds long before we’re called to act. If we shrug off the idea of civility when we’re untroubled by ethical dilemmas, we won’t be very effective in facing those dilemmas once they arise. A civil lawyer builds relationships and manages their perspective before there’s a challenge to their ethics and civility.
Civility, in other words, is a habit. And cultivating that habit makes for highly effective lawyers.