April 2000

Civility and the Sane Lawyer

by Rebecca M. Nerison, Ph.D., Licensed Psychologist
WSBA Lawyers' Assistance Program

I listen daily to lawyers whose lives are made miserable by the bad behavior of their colleagues. Lawyering can be a hostile business. According to Benjamin Sells, author of The Soul of the Law, the word "adversity" (as in adversarial system) comes from roots meaning "opposing, hostile," while "litigate" means "to carry on strife." Sells concludes, "…the psychology of litigation suggests that litigation is dedicated to carrying on strife, not resolving it" (page 82, italics original). Given that this is the milieu in which many of you labor, it is important to think about what might be going on beneath the surface.

Anger and hostility are going on. The dictionary definition of hostility is "of or pertaining to an enemy." What do enemies do? Fight. Fighting frequently connotes anger. The problem is, chronic anger is bad for you, and not just because it makes you cranky and difficult to be around. A recent Harvard study indicates that very angry men are twice as likely as less-angry men to suffer a fatal heart attack or stroke. Even more to the point, a Duke study of lawyers' hostility over a 25-year period showed that nearly 20 percent of the most hostile lawyers were dead by age 50, while only four percent of the least hostile had died.

What else is going on? Fear of loss. Lawyers are afraid of losing lots of things, such as time, money, advantage, face, prestige, power, position, justice and the case. Fear influences behavior profoundly, pervasively, and often unconsciously. Just think about a parent's reaction to a child running into the street without checking traffic. The automatic responses: fear for the child's safety, screaming the child's name, feeling angry at her carelessness, yelling at the child.

In the case of both anger and fear, the body releases stress hormones, such as adrenaline, which trigger the well-known fight or flight mechanism. Behavioral neuroscientists believe that this process occurs in a very primitive part of the brain known as the amygdala. Since challenging opposing counsel to fisticuffs or fleeing the courtroom are not realistic options, the body and mind must work together to assimilate this new physical condition and to choose an appropriate response.

Enter the cerebral cortex. As human beings, we are blessed with an abundance of this brain material, which is home to our higher powers of reasoning and judgment. Unfortunately, in the face of a colleague's bad behavior it can take a concerted effort to engage these powers. Physiology is not our friend in these matters. We must make a deliberate choice to override our animal instincts and not to lash out in kind.

Let us consider for a moment the cost of allowing physiology to rule the day. I believe we will see an increase in uncivilized behavior among lawyers, and society in general, to the extent that the current pervasive attitude of disrespect continues growing unabated. Disrespect is an unwillingness to show consideration or appreciation. It is a smallness of spirit evidenced by contempt, superiority, self-promotion and self-indulgence. And its cost is high. Disrespect leads to hostile behavior. Hostile behavior relieves stress and therefore feels good. The problem is that hostile behavior begets more hostile behavior. Witness ethnic and religious conflicts, gang warfare, road rage and prolonged litigation.

Meanwhile back at the office, lawyers must deal not only with their heavy workloads but with the task of managing their own rage. In response to an unreasonable demand by opposing counsel, for example, a lawyer must spend precious time thinking about the situation, formulating and generating a response, while dealing with the barrage of chemicals assaulting his or her system. No wonder so many lawyers feel exhausted and demoralized.

There is nothing to be lost by behaving respectfully, and everything to be gained. Breaking the cycle of incivility will create happier, healthier lawyers and an enhanced reputation for your beleaguered profession. (Unless, of course, you wish to foster the mindset of fans egging on brawling hockey players.) Modeling civil behavior benefits not only our colleagues and work life, but also our children. I remember some of the comments made by teenagers in the aftermath of the Columbine High School shootings. The consensus seemed to be that adults in our culture are modeling aggressive, hostile behavior every day.

So, what's a lawyer to do in the face of a colleague behaving badly? First, begin recognizing your own knee-jerk responses to events. This will decrease the tendency to judge others by reminding you that you share the same physiological processes as your colleague. Recognition serves to increase empathy, as well. If you can pinpoint the roots of your rage (e.g., "I'm really afraid this could cost me the case!"), then you are in a position to wonder if your colleague is experiencing the same feelings (she probably is). Being less judgmental and feeling more empathy help us realize that we're really more similar than different.

Second, breathe.

Third, engage your cortex. Ask yourself, "How do I want to respond to this?" Remember that physiology is not your friend right now. If you feel angry, try to buy yourself some time to allow the chemical rush to subside so that you can apply your full powers of reasoning and judgment to the situation. After thinking about it, you may choose not to respond to the other lawyer's behavior. Sometimes this is best; it depends on the situation.

Fourth, if you do choose to respond to another's behavior, try these ideas. First, assume an attitude of inner calm and security. Keep your tone neutral or friendly. Express empathy; bring the person back into the fold by saying something like, "Trials are really stressful, aren't they?" Address the emotion that is being expressed underneath the bad behavior. Stand back and look at the person, saying "Wow, that was really a hostile thing to say." This serves to point out what's really going on in the room and to hand it back to the offending party. It also buys you time to propose an alternative way of addressing the issue or dispute, or at least to suggest that there may be another way to approach it.

Is any of this easy? Decidedly not. It reminds me of salmon swimming upstream, against powerful currents of cultural norms. But consider the cost of not bucking the trend: salmon who fail to swim upstream and spawn will die just as surely as those who succeed, but they threaten the species with extinction in the process.

I encourage all of us to develop the courage to behave respectfully and to confront our colleagues who don't. This means, of course, getting our own act together, lest we be people living in glass houses throwing stones. For example, we may choose practicing peaceful conflict resolution with our spouses and children. We may deliberately drive our cars in a non-aggressive manner. We may inform the attorney bellowing on the other end of the line that we're hanging up now and will be happy to resume the conversation when things are calmer.

Idealistic? Maybe. Ask my clients. Who says one person can't change the world? You have the power to make your colleagues' hours a misery or a delight. And the heart attack you stave off in the process will probably be your own.

The Third Annual LAP/LaSD Statewide Conference will be held at The Inn at Semi-Ah-Moo in Blaine, Washington from April 7-9, 2000. This year's conference features nationally and internationally acclaimed faculty teaching topics that include Employment Law, Suicide Prevention, and Beyond Hourly Billing: Ethical Conduct Toward Clients. The registration fee, which includes meals but not accommodations, is $175 for the weekend or $150 for Saturday only. For further information or to obtain a registration form, please call 206-727-8268.

The WSBA Lawyer Services Department offers the following four programs:

The Lawyers' Assistance Program (LAP) — 206-727-8268:

Confidential assistance for lawyers with emotional, drug/alcohol or other personal problems.

The Law Office Management Assistance Program (LOMAP) — 206-727-8237:

Offers consultation and information to help solo and small-firm practitioners deliver legal services of the highest quality.

The Professional Responsibility/Ethics Program — 206-727-8219:

Lawyers can call a WSBA lawyer for assistance in resolving ethical dilemmas.

The Alternative Dispute Resolution Program (ADR) — 206-733-5923:

Offers two low-cost methods of resolving disputes: voluntary fee arbitration and mediation.

Please call our department at the phone numbers listed above for additional information and/or assistance in these areas.

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