Read part 1 first.

From: Sims Weymuller  February 14, 2011 2:31 PM

Dear Karen,

Sarcasm is a good example.  Your email is laced with it, but it does not advance your cause.   It does, though, increase the friction of the dialogue, unnecessarily so.   That is part of my point.  As soon as we inject sarcasm, condescension or the like, the discussion gets heated when it really doesn’t need to.  If I didn’t know you were just trying to prove a point, I may respond emotionally and attack you on a personal level, and so the downward spiral would begin.

Don’t get me wrong, I am far, far from perfect on this front.  Heck, I joined the Professionalism Committee for the same reason Columbo joined the police force: make up for the bad things I have done.  But I am working to learn from my mistakes and the mistakes of others.  On the Committee, we pass those lessons on to other lawyers, especially new ones.

Though it is a bit far afield from a discussion of civility, I agree entirely that court funding is a critical issue and I think it is fair to say that WSBA is leading the charge when it comes to advocacy on this front.  A decade ago, the Bar asked the Supreme Court to establish the Access to Justice Board to address the growing need for legal services and lack of funds to meet that need.  For the last five years, WSBA has—and continues to—put enormous resources into the Justice in Jeopardy Coalition, a group specifically aimed at addressing the court funding problem.  The Coalition’s report can be found here and the Justice in Jeopardy Bar News special issue can be found here.  Additionally, the Bar supports the Alliance for Equal Justice, the Access to Justice Network, the Task Force on Equal Justice Funding.

Assuming for the purposes of our discussion that the WSBA can do more than one thing at a time, let’s talk about civility.

The question you posed doesn’t make sense to me.  Civility is a subset of professionalism.  Professionalism is a broad tent used to describe several areas including: competence in one’s practice; a culture of service; involvement in your community; a balance of work, health, life and stress; an embrace of diversity; and, as we have discussed, civility.  So I don’t think you can “act professionally and be truly uncivil” or “be professional and act uncivilly.”

By the gist of the question, I think you meant some version of ”is it better to be an effective advocate or be civil.”  That is a false choice.  I have never encountered a situation where it would improve my client’s position to act uncivilly.  I sure have encountered my share of jerks and wanted to act (and may have acted) uncivilly, but I do not think it would have (or did) improved my client’s position by any measure.  On the contrary, I have seen time and again where uncivil acts have been to the determent of lawyers and their clients alike.

So is your gripe with the notion that lawyers should be civil or that the Bar is encouraging civility?

Sincerely,

Sims

From: Karen Koehler  February 21, 2011 10:52 PM

My dearest Sims:

I sincerely apologize for the delay in responding to your last note.  Not only was I out of town, but I came down with a nasty bug that has only now departed.

I fear that your rather scolding tone is the result of us not using quite the same syntax.  Sims, if I close my eyes I envision you writing the note in your office most probably dressed in a proper suit and tie.  Perhaps you are wearing something not quite so formal.  But I still would venture it has been ironed nicely with symmetrical creases down both legs.  Belted appropriately.  Involving buttons going almost up to your neck.  I on the other hand, am wearing my favorite pair of jeans, a t-shirt, and long since discarded any jacket for a hoody.  I most certainly am not wearing shoes.

Well, Karen you ask – what does that have to do with anything.  And I respond dear Sims (in the hypothetical of course),  Mr. Lawyer In Suit may have read too much into the more casual approach of Ms. Lawyer In Jeans.  There is quite a difference between writing a playful rejoinder.  An over the top, tongue in cheek, little piece of glee; as opposed to a sarcastic diatribe.  I mean Sims, when has a lawyer ever used the phrase “absolutely divine” when talking about a serious subject with you.

Did I perhaps bait you by writing in a way that you could have seen as potentially disrespectful.  Sure.  Just to see if you would charge me with being disrespectful.  That is of course the danger of policing civility.  Depending upon the officer’s mindset, what could be viewed as humorous may be deemed sarcasm. Snap!  Just like that.

You have obviously spent quite a bit of time working for the WSBA.  You are a loyal leader who can defend the integrity, intent and mission of the association with poise and skill.  You are to be commended for your service.  But my purpose in discussing civility with you, was not to address competence in one’s practice,  a culture of service, involvement in your community, a balance of work, health, life and stress; or the embracing of diversity.   It was to challenge the WSBA’s civility initiative in the litigation arena. (And to keep priorities in perspective by mentioning the real threat to our civil justice system, i.e. the court funding crisis).

We litigators learn that when trying a case, one should never ask a question in opening or closing.  The concern is the jurors may answer it in a way you’d rather they not.  So, we try to make sure that if we ask a question it is so tight that it can only be answered correctly.

I asked you one question in my last note:  “Is it better to : 1)  act professionally and be truly uncivil; or 2)  be professional and act uncivilly.”  Sims, you did not answer it.  You engaged in lawyer logic to explain it into insignificance.  But you did not answer it.    Yes, it is a loaded question.  But it is also a simple one.  The answer is number two.

“The purpose of polite behavior is never virtuous. Deceit, surrender, and concealment: these are not virtues. The goal of the mannerly is comfort, per se.”  June Jordan  (b. 1939) US Poet, Civil Rights Activist

karen