Misunderstanding Incivility and How to Stop It
© 2013 By Bill Eddy, LCSW, Esq.
Recently there has been growing discussion of incivility in all areas of modern life. Public figures, professionals and the public are growing more concerned about this behavior. While this problem appears in every occupation, I am writing this article about the legal profession as a lawyer.
Nowadays, parties in disputes are abandoning lawyers and attempting to represent themselves more than ever before. Students are applying to law schools in fewer numbers than in decades. Worldwide, the view is growing that lawyers are a source of hostility, rather than a profession that manages it. While my points in this article may apply to any occupation today, because the problem is people, the practice of law appears to attract and tolerate more of such people.
As a practicing attorney for 15 years in Family Courts, I routinely experienced incidents of incivility – especially when I was starting out. As a family mediator - before, during and after my court practice - I have experienced a few such incidents, but much less so. More recently, as a speaker at bar conferences and judicial trainings on managing “high-conflict” behavior, I am increasingly asked about methods for dealing with rude, obnoxious and shameful behavior by “high-conflict” counsel.
I am told by judges and lawyers alike that new attorneys are more engaged in this type of behavior. If this is really true, it’s hard to tell whether it is the a result of new lawyers learning from the worst role models, or from seeing uncivil behavior rewarded instead of stopped, or simply entering the profession as ruder people. Perhaps all of the above.
What I do know is that this problem is not being very effectively addressed and I believe it is because most people misunderstand its dynamics. This article addresses what may be happening and provides a few suggestions for dealing with it.
Persuasion Doesn’t Work
On January 28, 2013, a Wall Street Journal article reported that some leading New York lawyers joined together to address the problem of incivility in a new way. They re-wrote popular songs and performed them at a bar meeting about “lawyers behaving badly.” Apparently it was great fun and succeeded at bringing attention to the problem, but I doubt it had any impact. For years, judges and leading attorneys have given speeches in an effort to inspire their colleagues to “behave.” I have attended sincere lectures on civility by justices of the highest courts in several states and provinces, and I have great respect for them. But this hasn’t stemmed the increase in this behavior.
For example, in 2007, the State Bar of California adopted the “California Attorney Guidelines of Civility and Professionalism.” The introduction to the guidelines state in part:
“As officers of the court with responsibilities to the administration of justice, attorneys have an obligation to be professional with clients, other parties and counsel, the courts and the public. This obligation includes civility, professional integrity, personal dignity, candor, diligence, respect, courtesy, and cooperation, all of which are essential to the fair administration of justice and conflict resolution.”
This is a great set of guidelines for civil behavior and I was encouraged by this effort. But they have failed to reduce the problem, which has only increased since then. In setting forth these guidelines, the President of the Bar stated:
“… As we all know, uncivil or unprofessional conduct not only disserves the individuals involved, it demeans the profession as a whole and our system of justice. A growth in uncivil conduct in the legal profession caused me to initiate the effort for Board adoption of civility and professionalism guidelines.
I hope you will join me in encouraging California attorneys to engage in best practices of civility by making the Guidelines their personal standards and goals….”
Sheldon H. Sloan, Letter to Bar Leaders, July 17, 2009.
It turns out that “encouraging” attorneys hasn’t worked. 80-90% of lawyers already act civilly with each other and the court. They don’t need detailed guidelines about how to behave, because they already routinely act in a civil manner. The 10-20% who act uncivilly haven’t changed. Lack of encouragement isn’t the issue for them. They need real consequences if they are going to stop their behavior, and retraining or expulsion from the profession.
Unfortunately, the Guidelines avoided enforcement consequences, such as sanctions, specifically saying: “Sanctions can be expected to lead to a less collegial relationship among counsel, and tend to undermine the civility effort.” (Guidelines FAQs, July 2009). The hope was that improving the profession would be sufficient reward in and of itself, by improving enjoyment of one’s professional work and raising the overall view of lawyers in society. That hopeful approach has failed. So what other approaches are there?
Public Shaming Doesn’t Work
In February, 2013, on the San Diego Family Law Listserve, one lawyer named another lawyer (I’ll just say “Lawyer A”) and described Lawyer A’s uncivil behavior in detail which he (“Lawyer B”) thought was outrageous. The uncivil behavior had to do with Lawyer A having a couple of dogs dropped off at Lawyer B’s office, without warning or agreement, that were the subject of a divorce dispute and prior unproductive conversations between the lawyers. Apparently the dogs created quite a management and cleanup problem.
This triggered two Listserve discussions: 1) Was Lawyer A’s behavior outrageous? Most of those who responded agreed it was and some suggested legal actions that could be taken by Lawyer B against Lawyer A. 2) Was it inappropriate for Lawyer B to publically give Lawyer A’s name – was this perhaps uncivil too? This drew heated responses on both sides. The theory of those who supported the public “outing” was that public shaming will lead to better behavior. The other viewpoint was that public shaming is not part of the solution, but part of the problem of incivility. It showed highly negative personal attacks designed to harm another professional’s reputation. In a sense: fighting fire with fire. It doesn’t make things better and appears to make things worse.
Yet public shaming is an increasingly common approach in our society – even among public figures and even endorsed by some business leaders. For example, Robert Sutton, a management professor at Stanford University, published a popular book in 2007, titled The No A**hole Rule: Building a Civilized Workplace and Surviving One That Isn’t. In it he argues for the near-elimination of a**holes from the workplace, including employees and managers who qualify. (I’m restraining myself here – he spells the a** word out and admits that he “shamelessly” used the word to get attention – which he successfully did.) I agree with many of his concerns and many of his ideas (although I prefer the term “high-conflict people” or HCPs for short – without publicly labeling any individual). But I disagree with his support of public shaming.
For example, he describes a restaurant scene in which someone is bothering a waitress:
One day, I waited behind an especially rude customer who was sitting at the counter. He made crude comments, tried to grab the waitress, complained about how his veal parmigiana tasted, and insulted customers who told him to pipe down.
This creep kept spewing his venom until a fellow customer approached him and asked (in a loud voice), “You are an amazing person. I’ve been looking everywhere for a person like you. I love how you act. Can you give me your name?” He looked flustered for a moment, but then seemed flattered, offered thanks for the compliment, and provided his name.
Without missing a beat, his questioner wrote it down and said, “Thanks. I appreciate it. You see, I am writing a book on a**holes… and you are absolutely perfect for chapter 13.” The entire place roared, and the a**hole looked humiliated, shut his trap, and soon slithered out—and the waitress beamed with delight. (p. 179-180)
A Bar of Soap
The problem with this approach is that it promotes calling people names in public, which is itself seen as uncivil behavior by many people. When I was a teenager, my mother washed my mouth out with soap for using words like that – even in our house!
When restaurant customers or beleaguered lawyers resort to self-help by publicly humiliating someone by name who has been offensive, it looks a lot like there are two a**holes and the problem often escalates. Sutton admits this about himself in an example in his Epilogue, after he first published the book. He was at a concert where he told two noisy, drunken women behind him to quiet down and they called him an a**hole. So he said they were the “real a**holes” to which they screamed back “you are the f***ing a**hole, not us.” To his credit, he admits that he may have contributed to the problem in that case. (p. 202)
Identification as a Victim
What many people don’t realize is that much or most incivility is justified in the uncivil person’s mind by the actions of others. “I had to say what I did after what they said or did to me!” is what I often hear or see in uncivil situations. From my experience with HCPs, efforts to angrily confront them with their own behavior just trigger more defensive behavior, not less. They lack self-awareness of their impact on others and are absorbed in their own arrogance or distress. It appears that their uncivil behavior is part of their personality, rather than an aberration. Negative feedback – especially reciprocal insults – doesn’t change their normal approach to life at all. In fact, it reinforces it.
In a book on the development of personality disorders, beginning in childhood or adolescence, the researcher Efrain Bleiberg with the Menninger Institute describes a common pattern he has identified, which I have summarized as follows:
When people develop personality disorders, they don’t reflect on their own behavior in social interactions, with the following result:
1. Their behavior becomes rigidly patterned (doing the same thing over and over again).
2. This causes significant social impairment (they don’t have friends and social respect).
3. Which causes significant internal distress (because people need friends and respect).
4. This rigid behavior “evokes” responses in others which “validate” or justify their inflexible beliefs and behavior in their eyes. (“See, I showed them,” they often say, proud of their bad behavior.)
Bleiberg, Treating Personality Disorders in Children and Adolescents, 2001.
In other words, a person with a personality disorder tends to trigger negative responses in others, but then they don’t gain any insight from these negative responses, regardless of how well-intentioned the responders might have been. If you think of giving personality-disordered people or “high-conflict” people insight into their own behavior, just tell yourself: “Forgetaboudit!”
Consequences, not insight, are what is needed with such people. But could uncivil attorneys have personality disorders?
Attorneys with Personality Disorders?
When people have a personality disorder, they have a more narrow range of behavior, as described by the mental health handbook, the DSM-IV and the new DSM-5. If incivility is part of that personality-based behavior, then it is an embedded pattern habit that is generally harder to change than stopping drinking or drug use is for an alcoholic or addict. It’s an automatic behavior which the person accepts as “necessary and normal,” since those with personality disorders lack self-awareness and behavior change.
According to various studies in the United States, approximately 10-20% of the general population has a personality disorder. They are present across all economic levels, racial/ethnic groups, age groups and geographic regions of the country (although slightly higher in urban areas than rural). (Grant, et al. Journal of Clinical Psychiatry, July 2004, April 2008 and July 2008 issues.) To have a personality disorder, one must have significant social impairment and/or internal distress. No one has studied, to my knowledge, whether lawyers as a group have less than the general population, about the same or more. But many people inside and outside the profession believe there is a higher incidence in the legal field – that it attracts high-conflict people, many of whom have personality disorders.
From my experience and observations, this personality-based behavior follows three general patterns in the legal field, whether full personality disorders or just some traits of these disorders:
These attorneys see themselves as superior and allowed to treat others as lesser beings. The common expression is that they see themselves “as a legend in their own mind.” They enjoy being uncivil to opposing parties, opposing counsel and their own clients. Yet they see themselves as outstanding advocates – zealous advocates – for their clients, and justify every insult they deliver as part of that advocacy role. They think that the rules don’t really apply to them and they laugh it off when those “beneath them” (in their eyes) are upset by their behavior. Yet they effectively impress those above them enough, such as judges and leaders in the legal community, that they rarely get confronted with real consequences for their behavior.
Such lawyers can’t control their emotions – they are all over the place. They may slam down the phone or blurt out that someone is an a**hole in a negotiation session. They write fiery emails and send them, blasting the other party for being a jerk (totally oblivious to the inappropriateness of what they themselves have written). They always feel on the defensive and go from crisis to crisis (mostly self-created), dealing angrily with their own clients, staff, and opposing counsel in much the same manner. Yet they are totally surprised when others point out to them that they are acting inappropriately. Some of them even get in trouble for treating the court disrespectfully, because they have difficulty controlling their emotions and their mouths with anyone – even in court.
These lawyers enjoy other people’s pain. They freely criticize and manipulate their clients, the opposing parties and opposing counsel. They ask opposing counsel for favors, but rarely return them. The legal profession gives them cover for the behavior they came in with, because they are usually clever enough to cultivate the appearance of being chummy with those in authority positions. This personality in particular is developed by adolescence and very hard to change. Sole practice and family law are areas where they can thrive and engage in misbehavior with little likelihood of consequences. They have a much harder time in large firms where people catch on to them and won’t tolerate their daily behavior. But some slip through anyway. They cleverly manipulate the court (such as lying about case precedents or their own actions in a case) and rarely get caught.
All of these personalities are extremely hard to change and many people have more than one. However, people with just traits of a personality disorder, but not the full disorder, may be more able to change with sufficient consequences and training. All of them identify themselves as victims defending themselves from others, which helps them justify any behavior they engage in. A lecture from the bench or guidelines “encouraging” better behavior will have no impact on them whatsoever. Incivility is part of who they are. It is a defense mechanism fundamental to their personalities. You might as well tell them not to breathe. Instead, there are better approaches.
Of course, it’s very important to recognize that personality disorders can be in the eye of the beholder and that even mental health professionals disagree on who fits this diagnosis. Many people with personality disorders don’t see it in themselves, but see it in others who are acting reasonably. In fact, that’s what drives a lot of litigation when a person with a personality disorder is involved. Which person is it? The focus needs to be on behavior rather than labeling. But uncivil behavior does need to be changed.
Based on years of working in mental health settings, family law practice and studying the research on personality problems, it has become clear to me that changing personality-based behavior requires consequences, much in the same way that treatment for alcoholism and addiction doesn’t really begin until there are sufficient and immediate motivating consequences, such as losing a driver’s license, a job or a marriage.
I would make the following four suggestions:
1. Requiring Civility as a Mandatory CLE Topic Itself: For years, there has been a required effort in the legal profession to educate lawyers about alcoholism and addiction, including mandatory continuing legal education (CLE) every two years on the subject and referral services for those in need of a recovery program. I would suggest requiring Civility as a mandatory CLE topic for all lawyersitself, not just part of Ethics, including descriptions of specific behaviors that are considered uncivil and exposing examples, without naming names, except where there are public cases, such as some recent appellate cases in which lawyers received sanctions.
Lawyers could submit confidential case examples of recent uncivil behavior prior to a CLE seminar, for larger discussion. For example: “Is it uncivil to write a letter that states that opposing counsel is “a disgrace to the profession?” Or to throw papers that fall on the ground at opposing counsel just before court is in session? Or to tell a new lawyer “You’re not a real attorney” during settlement negotiations? Or to refuse to shake opposing counsel’s hand when he or she arrives with a client for a deposition? Or to serve papers on the opposing party at work by armed two marshals when that party’s counsel said he would accept service?
Some local bar leaders have begun to take this approach of giving public examples (without names) for discussion, although it’s not at a mandatory CLE. Such a CLE should become mandatory until the problem of incivility is significantly reduced, at which time it could become voluntary.
2. Providing real consequences: Financial sanctions from the court, suspensions of licenses and disbarment are real sanctions. We are starting to see more court decisions at the appellate level endorsing sanctions against attorneys who have been particularly egregious in their behavior. This is a good thing. Disciplinary action by the Bar needs to become more assertive in the civility area. The Civility Guidelines are a great idea, but they need enforcement measures. State Bar presidents and committees should build on these efforts.
3. If the first two suggestions don’t produce enough behavior change: Perhaps there should be an effort to requiring civility training for certain attorneys, just as certain lawyers are required to take professional responsibility courses as a disciplinary consequence. After all, recovery from alcohol and drugs takes repeated learning and practice of healthier behaviors, not just a lecture. But first, let’s see if the first two suggestions make a difference.
And perhaps it wouldn’t hurt if some judges put a bar of soap next to the gavel in their courtroom, as a subtle reminder to lawyers and the parties that we need to act civilly, be civil with each other and the public, and that there may be consequences if we don’t!
The practice of law has contributed greatly to the peace and stability we enjoy in democratic countries. It is the envy of nations becoming free around the world. But the legal system is based on rules and consequences for the violation of those rules. With the apparent increase in people with personality-based problems in our society, we should recognize the need to use our rules –and consequences – on ourselves as well. As they say, we can do better!
Bill Eddy is a lawyer, therapist, and mediator. He is the co-founder and Training Director of the High Conflict Institute, a training and consultation firm that trains professionals to deal with high conflict people and situations. He is the author of several books and methods for handling high conflict personalities and high conflict disputes with the most difficult people.