Keeping a civil tongue: How to win cases and impress people

  • October 01, 2014
  • Janice Tibbetts

Jen Hunter, who is eight years into her legal career as a Toronto litigator, sometimes feels she has to be “less than polite” in order to forcefully represent her clients in the often-adversarial legal system.

The 33-year-old admits she has questions, even misgivings, about the civility movement that has permeated the legal profession in recent years. Several umbrella groups, including the Canadian Bar Association, the Advocates Society, and the Law Society of Upper Canada, have all taken on a seemingly rising tide of rudeness in courtrooms, written correspondence, and closed-door proceedings such as examinations for discovery.

 “I would certainly say civility is very important but I think there can be competing interests when it comes to standing up and strongly advocating for a client’s position,” argues Hunter, an associate at Lerners LLP.

Hunter contends that there are unique pressures on young lawyers, some of whom feel they have to act like pit bulls to show partners and clients they’re not pushovers, and to stand their ground against aggressive opposing counsel who are usually more senior.

“Particularly as a young lawyer, we can sometimes be taken advantage of with someone’s aggressive position and we need to stand up for ourselves, to state our position forcefully in a way that by some definition might not be seen as polite or using good manners,” Hunter says.

“When things get heated or adversarial, I don’t feel I have to be polite to the other side at all times, but definitely professional.”

The persistent debate over the merits of civility comes at a time when lawyers in Canada and elsewhere have been increasingly criticized for behaving badly. A report from the Law Society of Upper Canada, for instance, documents a litany of complaints about courtroom antics, including failure to stand when the judge enters the room, making faces at opposing counsel, eye rolling, slamming down books and putting feet on the counsel table.

Two senior lawyers, who support the civility movement, argue that it doesn’t mean young lawyers have to be soft, or even conciliatory. But they should, first and foremost, avoid getting personal, losing their tempers, or bullying.

 “I do believe lawyers feel they have to act aggressively in order to impress their client in the way that a peacock has to fluff up its feathers as a way to attract a mate,” says Connie Reeve, a partner at Blake, Cassels & Graydon LLP and past recipient of the Catzman Memorial Award for Professionalism and Civility.

“It’s not actually necessary to have to do that in order to be an effective advocate. You can be an effective advocate by being persuasive, by being clear in your position and presenting the position forcefully.”

Eugene Meehan, a lawyer at Supreme Advocacy LLP in Ottawa, adds “a lot of clients watch too much TV and think you have to be a pain in the ass.” But Meehan, who gives presentations about civility to law students, says judges are more impressed – and lawyers are more likely to win – when they take the high road.

“If most judges see someone being extremely negative and see you not taking the bait but responding to the issues, your credibility goes up,” Meehan says.

“My theme is forget trying to change the behaviour on the other side because it’s not going to work. The only thing you can do is change your own behaviour, protect your client, and win the case.”

Reeve acknowledges that young lawyers can feel more pressure than their senior counterparts to fight their way to the top through confrontation rather than courtesy, particularly when they are at the receiving end of senior lawyers who behave badly.

“Young counsel should look around and decide who they should be modelling themselves after and ideally the young counsel will decide to model themselves after counsel who is respective and courteous,” says Reeve. “I would say young counsel does not want to model themselves on senior counsel that bullies them.”

She notes that finding role models is more challenging for young lawyers who practise on their own and do not have mentors in their firm – a benefit that Hunter says was immensely helpful for her in her earlier years in the profession.

Reeve points to the Advocates Society’s Principles of Civility a standout among the many reports that have been written on the issue in the last decade or more. 

The booklet acknowledges that litigation is not a “tea party” and the adversarial nature of the system means “counsel’s role is openly and necessarily partisan.” But the document asserts “counsel can disagree, even vigorously, without being disagreeable.”

The society’s 76 recommendations cover everything from handling opposing counsel in and out of the courtroom, to communicating with judges and witnesses and behaving appropriately in examinations for discovery or other behind-the-scenes proceedings, when lawyers are not under the watchful eyes of the public and a judge. Among other things, lawyers should avoid being argumentative with each other and stay away from “disparaging personal remarks” and “undignified or discourteous conduct.”

That makes sense to Hunter, who says she has learned that “maintaining professionalism means it doesn’t get personal.” She adds, however, that this is less of a problem in public than in private, when lawyers can send threatening emails or letters, or treat each other with disdain at closed-door proceedings, where there can be less self-regulation because there is nobody watching.

Hunter recounts an incident about three years ago, in an examination for discovery, when the lawyer on the other side, who was many years her senior, tried to bully her, telling her that she was “wasting everybody’s time” and that her questions were inappropriate.

Meehan, who notes that he has heard young lawyers being patronized and even threatened by senior counsel, advises against responding to negativity with more negativity.

Meehan likes to remind law students of his “pig rules,” he says. “Pig rule number one is never wrestle with a pig, you’ll only get dirty and the pig enjoys it.”

Janice Tibbetts is a freelance journalist based in Ottawa.