David Casselman '78, Senior Partner at Wasserman, Comden, Casselman & Esensten, LLP
An Alumnus' Compelling Argument for Civility
Mr. Casselman is also an active member of the National Board and Los Angeles Board of the American Board of Trial Advocates (ABOTA). He wrote and produced "Civility Matters" a DVD used by ABOTA nationwide to teach civility. This project is part of the effort to promote the first specific purpose in ABOTA's constitution: "To elevate the standards of integrity, honor and courtesy in the legal profession." ABOTA created "Civility Matters" with the hope that the program would be presented at all ABOTA educational activities, other bar and professional programs and at law schools.
Q: How would you define civility in the legal profession?
A: Civility is a major component of professionalism. Professionalism involves honoring the obligations of your profession to serve both the legal system and your clients. It includes treating lawyers, judges and other members of the court with the respect and dignity they deserve. It also includes ethically and zealously representing your clients, but not at the expense of acting in an unprofessional way toward other people or contrary to the time-honored precepts of our judicial system. Being a lawyer is and must always remain a profession, not just a job.
Q: How did you come up with the idea of the Civility Matters DVD?
A: From fairly early on, I was interested in finding a way to help reduce the incivility among legal practitioners. But efforts by more senior members of the bar had been episodic and ideas to try and enforce civility among practitioners did not engender much support among other well-meaning members of the bar. So, various members of the American Board of Trial Advocates (ABOTA) and I decided to look for a better way to tackle the problem.
Eventually, we realized that the key to civility is early awareness of the problem. With good mentoring, young lawyers right out of law school are almost always guided down the right path. So we settled on the idea of trying to teach or "inoculate" young lawyers against incivility before they catch the disease, so to speak.
Q: Why was it so important to produce this project?
A: I had been aware for decades that the problem of incivility was getting worse and worse. When I was a young lawyer, many respected lawyers at that time were making an effort to maintain civility, and it was effective. When they retired, I was too young and there was no one else willing to carry the torch. So, I figured that if we could produce this video and institutionalize training regarding the importance of civility, we could make a significant difference.
Early on, I was willing to believe that the incivility I was seeing was just a Los Angeles problem. Only after serving on the National Board of ABOTA did I realize it is a national problem. My brethren were reporting the same kinds of problems across the country. Really, it is an epidemic.
Some people think they can gain an advantage by being tough. Others think it will entice clients if they take hard line, i.e. unreasonable positions. I suspect that this is a function of the size of the city in which people practice. In a big city people think, and are likely correct, that they have a better chance of getting away with uncivil behavior, figuring they won't have to deal with the same people again.
Without national emphasis on the problem, it will always spring up and grow again. So, we decided to do what we could, starting with the Civility Matters video.
Q: In the DVD, several of the jurists interviewed talk about factors that contribute to incivility: being disrespectful to the court or staff, being unprepared, "Rambo tactics," failure of lawyers to accurately convey the law and tardiness. The Civility Matters booklet also contains a Judges' Top 10 Pet Peeves as well. What other ways do lawyers engage in incivility? Are there similar "pet peeves" that lawyers recognize?
A: The main problems of incivility among lawyers involve a breakdown in relationships, typified by disrespectful communications and refusals to grant common professional courtesies. But, incivility can take many forms: childish behaviors, like using inflammatory language, calling people names, defaming other lawyers or judges, or creating a legal fight between clients (which end up just costing the clients more money) are all too common.
Sometimes, lawyers engage in so-called "sharp" tactics, such as serving motions or demands on a late Friday afternoon, knowing the other lawyer won't see them until Monday, placing him or her at a disadvantage. Perhaps most infuriating are those who pretend innocence before the court, but behind the scenes take every possible opportunity to obstruct the litigation.
In the ideal situation, the lawyers should remain above the fray. By working together, they can often douse or at least reduce the fires that exist between their clients.
Q: Why is civility as important to the legal profession as it is to the actual delivery of justice in our civil courts?
A: The public has a perception of lawyers that is bad to begin with. When they see lawyers acting like spoiled children, with no moral compass, it furthers the belief that the system is broken and exists merely as a club to be wielded by those with the most money.
In truth, the system is designed to protect the public. Lawyers should embrace their role as guardians of that system. When lawyers cease to function in a civil fashion, the cases suffer, their clients suffer and the system suffers. More cases have to go to trial than should. There are fewer settlements. Things just don't work as well as they do when the lawyers work together, as common advocates for a just result, to solve the problem between their clients.
Q: Some of the judges in the DVD assert that the problem of incivility in the profession has gotten worse. What do you think has contributed to this increase in incivility? Has the digital age played a part in this?
A: I don't think the digital age is the primary factor. But, it adds to the problem. In truth, uncivil lawyers wrote nasty letters, too. They would dictate them to secretaries. It did give them more time to reread and reconsider their bravado. But, not always.
With email, of course, there is no cooling off period. People often hit "send" without thinking about the tone of their communication. Harsh rhetoric can create unnecessary and personal fights (in writing), and it only gets worse from there.
Incivility is a reality of the world we live in. We need to turn things around. When you don't rein in abuses of one kind or another, people think it is okay to behave that way. Some Judges throw up their hands, believing it isn't their job to teach lawyers how to behave. Interestingly, federal judges worry less about putting a stop to childish or uncivil behaviors. They are appointed for life and don't worry about getting re-elected. By comparison, state court judges are elected. So, they tend to be more solicitous of lawyers and are often less inclined to come down on those who are uncivil, perhaps fearing it could affect them when they have to run for re-election.
I should probably add that while it is often attorneys who are uncivil, judges can act uncivilly as well. They are people too. When that happens, it makes the practice of law a much more difficult and unpleasant experience.
Q: Civility Matters shows several clips from movies and TV shows about the law. Lawyers are often depicted as prickly and contentious in popular culture. Do you think this affects clients' expectations of how their attorneys should act? (Do they think their lawyers have to be mean to get the job done?)
A: I think there are many people who are affected by those stereotypes. I don't think it is a uniform thing, but I think there are enough clients who want Rambo tactics employed "to hurt" the other side, that it sometimes encourages their lawyers to be less civil. The clients don't realize that the lawyer owes the system more then they owe their client in that sense.
Lawyers should not weaken or harm the system by abandoning their professionalism. It is up to the lawyer to encourage his or her client not to antagonize or make this worse than they already are with the other side. Unnecessary and petty battles run up the cost for everyone. Lawyers eventually will need to work with the other side to come to a fair resolution.
If your client is following your advice and being civil, but the other side is not, you can only control what you do. You can't control what other people do. For example, if you ask for a courtesy and the other side refuses to grant it, you are certainly not obligated to provide a similar courtesy when they ask for it. However, often it better serves your client to give them the courtesy they refused to you, to ultimately benefit the case. If more people extended the proverbial olive branch, it would cut through many problems that divide them. It does not always work. But, often it does, saving your client a considerable amount of money, which will motivate them to come back to you with other legal problems in the future.
Q: More than one person interviewed in "Civility Matters" was careful to point out that just because lawyers should act civility, it doesn't mean that they shouldn't vigorously represent their clients. For those newer to the profession, how do they find the balance between being appropriately polite and tough enough to execute their job thoroughly?
A: That is the balance that mentoring can provide. You have to balance your duty of zealous advocacy against the benefits of finding common ground with the other side. There are many positive benefits that flow from courtesy. But, at the same time, you have to be mindful of your duty to vigorously represent your client. The two are not always in conflict.
It almost always costs nothing to be honest, cordial, polite, consistent and courteous to the other side. If you do that, you'll have a good reputation and things will work out as well as possible. There are times when you cannot give up certain concessions. And you can present your reasons for not conceding in a courteous manner while preserving all of your clients substantive rights.
Just being civil does not mean you are weak or a doormat. It just means you intend to remain polite and helpful to facilitate the process of working with the opposing lawyer to represent your respective clients. Civility gives you an opportunity to add a positive influence to situations where friction exists. Lawyers should be the proverbial grease between the wheels. They should never be the reason or cause for making existing problems worse.
Q: What is the best example you can give of a personal experience you have had in a case where civility played a key role in achieving a successful outcome?
A: I was involved with a case where our office got sanctions against another lawyer. A motion was filed seeking a monetary payment to our firm to compensate us for these improprieties. I accompanied one of my mentors who went to court to argue the motion, which we won. After the hearing, my mentor approached the other lawyer and offered to waive the sanctions if they would work with us to get back on a civil and professional basis. That led to open communication, and ultimately, it helped us to resolve the case.
In another case, a lawyer filed a new lawsuit that was assigned to me. The lawyer called me up, and he was very civil as he detailed the case and the reasons for his call. After listening, I realized that it was a rather straight forward matter, so I said, 'It doesn't sound like a complex case. Tell me more about X and Y.' After a few minutes, I asked him to send me confirming materials and with that assurance, negotiated a settlement over the phone. The call resulted in hardly any expense to either of our clients, and produced a fair result, making everyone happy. I have enjoyed a long and trusting relationship with that lawyer ever since.
Those are the kind of things that bring you more business and help improve your reputation.
Q: What is the most important thing you can convey about reputation to those who are new to the legal profession?
A: You start to develop a reputation in law school. Most people in the legal world don't know you when you are still in law school, but the people in your school and in your classes get to know you very well. They will see you again.
By the time you leave law school, people will know you (positively or negatively), and 20 or 30 years later you will likely have the same reputation with them. The same is true many times over when you start practicing. You will develop a reputation quickly, and it's very hard to change a bad one. Word gets around and pretty soon, people think they know you just from your reputation.
If you develop a reputation for civility and integrity it will follow you. The same is true for a negative reputation. Even if it is not entirely well deserved, your reputation will precede you as you meet and appear before judges and lawyers for the rest of your career.
Year after year you will touch a lot of people. Just remember: we are all walking along a short street, even in a big city. The same people you see going up one side, you will see again when you come down the other.