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President’s Message: To Be Civil, or Not To Be Civil; to Me, There Is No Question “Wisconsin Defense Counsel - defending individuals and businesses in civil litigation.” While not all attorneys find themselves in adversarial situations, by the nature of our business, our members usually find ourselves in conflict with another party from the get-go. Various resources (including, to my chagrin, artificial intelligence) define “adversarial” as: involving or characterized by conflict or opposition; individuals, groups, or systems in direct opposition to each other, often with the intent to compete, challenge, or even harm. Is there room for civility in such a charged, competitive environment? Not only is there room for it; it is essential. Wisconsin’s Rules of Professional Conduct for Attorneys include provisions requiring candor toward the tribunal (SCR 20:3.3), essentially requiring that lawyers not make false statements of fact or law, omit relevant legal authority or offer false evidence to the Court. SCR 20:3.4 sets forth parameters to ensure “fairness” to opposing parties and counsel. By way of example, this rule requires attorneys to not unlawfully obstruct another party’s access to evidence, assist a witness to testify falsely, or make frivolous discovery requests. There is no direct on-point Rule of Professional Conduct in Wisconsin requiring attorneys to be civil when dealing with each other in court, at deposition, in person, via correspondence or on the phone. Why not? Perhaps because the need for civility is so obvious it does not need to be codified? Possible. Perhaps because “civility” is a rather subjective concept and would be difficult to define or delineate? Likely. We “know it when we see it.” In my experience, the vast majority of attorneys conduct themselves professionally and treat opposing counsel civilly and with proper respect. It is the outliers—we can all likely name names at the drop of a hat –who stand out. At our spring conference in Kohler, Mike Crooks participated in a panel on “generational changes.” He mentioned that throughout his distinguished career there is a short list of attorneys for whom he will never extend a courtesy - these attorneys have been rigid and difficult in every dealing with Mike, and their conduct has not deserved any kindness in return. Yet many of us in the audience were nodding along with Mike about having such a “short list” in our own minds based on their prior uncivil conduct. How unfortunate. Mike’s advice—and advice I have echoed often when mentoring other attorneys—is that it is a long career, we are all human, and everybody needs a break sometimes. While some people (I hope a small minority) believe that being civil and extending courtesies to opposing counsel undercuts one’s zealous representation of one’s own client, the reality is that you do your clients a favor by encouraging and engaging in a civil process while zealously defending them and their legal positions. Compare these two situations: Situation #1: Plaintiff’s counsel and defense counsel are working on a case pre-suit, well prior to the expiration of the statute of limitations. Plaintiff’s counsel followed up with defense counsel on a settlement demand and was advised by defense counsel’s paralegal that defense counsel is out on medical leave for multiple weeks. The response: “If we do not hear back regarding our demand by (X date, well prior to defense counsel returning from leave), we will put it in suit.” Defense counsel now had to take time while healing to get another attorney in the firm up to speed to provide a response. Situation #2: Plaintiff’s counsel and defense counsel—both women—had a virtual scheduling conference. The judge was motivated to get a trial date set within a certain time frame. Plaintiff’s counsel advised she was going to be on maternity leave during the timeframe when the judge wished to set the trial. The judge asked when plaintiff’s counsel would be back from leave, and plaintiff’s counsel offered to the judge that she could be available for trial within two or three weeks after her due date. Defense counsel interrupted and said, “No, Your Honor, (plaintiff’s counsel) needs to take a maternity leave of twelve weeks, and we have no objection to a trial date twelve weeks or more out.” These two attorneys did not know each other well at the time. Plaintiff’s counsel called defense counsel afterward to thank her. They have been friends with a very smooth working relationship since. What did the attorney in the first scenario gain by pressing a perceived advantage during opposing counsel’s medical leave and demanding a response well before that attorney returned? Impressing the client? Impressing the boss? Feeling like they “won?” Feeling powerful by kicking someone who is down? A simple act of kindness and civility, in acknowledging the defense attorney’s unfortunate circumstance of having to be out for multiple weeks on medical leave and perhaps asking when the handling attorney could provide a response would have made no tangible difference in the outcome of the case. And it could have created or improved a working relationship with an attorney they may have occasion to work with again and again. Some attorneys seem to think a “win” looks like slamming the door on your opponent at every turn. If you have a good case and you do a good job for your client, you get your “win” in the end. A “win” does not need to involve demonizing or sticking it to your opponent at every turn just because they are your opponent. Although I was born and raised in Northeast Wisconsin, my dad was transferred to Illinois when I was in high school, so I began my legal career in Chicago. When I moved back home to Green Bay nine years ago, I heard repeatedly from local attorneys, “Wow, you must be glad to get out of that snake pit in Chicago and move on to the calmer/kinder practice of law in Wisconsin.” Actually, my experience regarding civility was quite the opposite of what people expected. I received more “poison pen” emails and unnecessary roadblocks in Wisconsin than I had ever experienced in Chicago. I have a theory as to why. In Cook County, Illinois (Chicago and surrounding suburbs), although it is not terribly efficient, civil cases go through a “case management” system. You are assigned a motion judge, and you appear before that motion judge every 30 to 90 days as discovery progresses. The judge enters an order at each case management conference with deadlines or other orders as needed. Once all discovery is complete, the case would be certified “ready for trial” and would leave the motion judge and be assigned to a trial judge. This process could take a year to several years, depending on the case, judge, and attorneys. The motion judges were all situated on the 22nd floor of the Daley Center. Most case management conferences were held in the morning hours. As a result, you would regularly be on the 22nd floor of the Daley Center attending multiple scheduling conferences in a morning. I would run into colleagues and opposing counsel regularly in the hallways of the 22nd floor and in the courtrooms. We saw attorneys in the community often, in person, face-to-face. We would sit together waiting for our case to be called. We would almost always talk before the case was called and decide what both sides needed and what to ask for from the judge. Cooperation was rewarded. It is much easier to work collaboratively when you are looking at somebody face-to-face, shaking their hand, asking about their kids, complimenting them on their shoes. Did I run into the occasional difficult personality? Of course. But there was a very significant familiarity and comfort level with the people with whom we were in an “adversarial situation.” Civility was built into the process because there was so much in-person engagement. When I relocated and started practicing full-time in Wisconsin nine years ago (I have been licensed in Wisconsin since 2000), I often would not meet opposing counsel until perhaps a deposition. I would talk with them on the phone via a scheduling conference, but not at any significant length. In my opinion this led to a more arm’s length, suspicious, adversarial process. It probably did not help that the locals all thought I was some new, shifty “Chicago lawyer.” A few years ago, I had a case—which ultimately went to trial—against a very well-known and respected plaintiff attorney in Green Bay. At the final pre-trial, we were in a hot dispute over an expert disclosure, with motions, affidavits and a series of emails placed before the judge for his consideration and ruling. The judge ultimately looked at the two of us and said, “You two are in a pissing match,” and made it clear he did not appreciate the level of tension (bordering on incivility) which had in his view unnecessarily arisen. After we returned to our offices, one of us (I truly cannot recall which one of us) reached out to the other by email with a brief apology, which led to a broader discussion, multiple mea culpas and an olive branch: we decided to have beers together in the near future, which we did. This was a game changer. This attorney and I still get into tangles on occasion, but the level of civility always remains. We took the steps to see each other as human beings beyond “opponent,” and that has made a big difference for us and, I believe, has not hurt our clients one bit. I would like to see our profession continue to make strides to build bridges versus fortresses, to see each other as human beings doing our jobs to the best of our ability and not as evil forces which must be struck down at every step. A few years ago, the Wisconsin Association for Justice (plaintiff’s bar) Women’s Caucus reached out to WDC leadership to invite defense counsel to attend their yearly Retreat and Seminar. The event takes place on a Thursday afternoon and Friday morning with an overnight stay at Sundara Inn & Spa in the Dells and includes CLE, keynote speakers, dinner, cocktails, and get-to-know-you activities (such as pizza making). Over the years several defense counsel—myself included—have taken advantage of this generous invitation to join many of our plaintiff attorney colleagues at this event. We have been asked to participate in panel discussions with our plaintiff attorney counterparts, topics of which have included—paraphrasing—“What does the other side do that bugs you and why?” This has led to many spirited discussions and, I believe, a better understanding of each other. Ever since attending this event, whenever I get a new case and opposing counsel is somebody I have met at this event, I find the case flows much more smoothly. We have reached out and gotten to know the other side and, although we will always have professional disputes and disagreements, we can do so civilly because we see the other side as human beings with challenges and stresses similar to our own. To me, this is the way. It is a long career, but a short life. Why create unnecessary stress and antagonism when, working cooperatively, professionally, and civilly, we can all still do great work by our clients and maybe sleep a little better at night? Author Biography: Heather Nelson is President and Shareholder of Everson, Whitney, Everson & Brehm, S.C., in Green Bay. She currently serves as WDC President, having served on the Board of Directors and Executive Committee as well. Heather is an experienced trial attorney, having successfully tried cases before juries in state and federal courts throughout Wisconsin and Illinois. She obtained her J.D. from DePaul University College of Law in Chicago and launched her legal career in the Chicago area. Heather became licensed to practice law in Wisconsin in 2000, defending cases in both Illinois and Wisconsin. Joining The Everson Law Firm in 2016 brought Heather back home to her Green Bay roots. Heather has been active in presenting CLE topics at WDC conferences, for the State Bar of Wisconsin, and at the North Central Region Trial Academy. None of this impresses her rescue dog and best boy, Bear, who cares only about long walks, pond swims and tummy rubs. |