Welcome

In an era too often marked by acts of incivility, Robert’s Fund aims to elevate the way we treat one another in the legal profession and to inspire acts of courtesy, kindness, and compassion among members of the profession. Increased civility demonstrably improves outcomes for legal professionals and the people that they serve. And because legal professionals profoundly influence society, even outside their formal work, their behavior often sets the tenor of corporate, political, and social interactions. View information about who we are and what we do

Civility Skills: The Art of Listening

Seattle University School of Law

March 13, 2015

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Readings

    I. Characteristics of listening and civility

  1. Donald E. Campbell, Raise Your Right Hand And Swear To Be Civil: Defining Civility As An Obligation Of Professional Responsibility, 47 Gonz. L. Rev. 99 (Dec. 2011)
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    Summary

    Professor Campbell distinguishes ethics, professionalism, and civility as follows: “Ethics addresses minimal obligations placed on lawyers under rules of professional conduct. Professionalism is identified as a lawyer’s obligations to society as a whole, apart from a lawyer’s obligations to her client. Civility is identified as those obligations that lawyers owe to other lawyers, their clients, and the court generally.” Ethical standards impose duties on lawyers that if not followed can lead to sanctions or disbarment, and professional standards provide guidelines to assist lawyers in serving the public good and the profession itself. Civility standards, on the other hand, are meant to provide guidelines on how lawyers ought to conduct themselves in relation to the parties involved, to “ensure that the image of the legal process is preserved and respected by the public, and to ensure that disputes are resolved in a timely, efficient, and cooperative manner.”

    He summarizes the historical evolution of ethics, Rules of Professional Conduct, and initiatives designed to foster civility.  

    Discussing the prevalence of incivility, Professor Campbell cites a 2007 Illinois Supreme Court Commission on Professionalism survey of 1079 lawyers that found:

    • 95% experienced or witnessed unprofessional behavior throughout their careers.
    • 79% experienced rudeness or strategic incivility within the last month.
    • 72% categorized incivility as a serious or moderately serious problem in the profession.

    Professor Campbell notes that 32 state bar associations have adopted civility codes of conduct with the following common precepts:

    • recognize the importance of keeping commitments and of seeking agreement and accommodation with regard to scheduling and extensions;
    • be respectful and act in a courteous, cordial, and civil manner;
    • be prompt, punctual, and prepared;
    • maintain honesty and personal integrity;
    • communicate with opposing counsel;
    • avoid actions taken merely to delay or harass;
    • ensure proper conduct before the court;
    • act with dignity and cooperation in pre-trial proceedings;
    • act as a role model to the client and public and as a mentor to young lawyers; and
    • utilize the court system in an efficient and fair manner.

    View/hide the summary. View the full article.

  2. Thomas E. Humphrey, Chief Justice, Me. Super. Ct., ‘Civil’ Practice In Maine Address at the Me. State Bar Ass’n Annual Program: Bridging the Gap (Nov. 30, 2004), in 20 Me. B.J. 6, Winter 2005.
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    Summary

    Chief Justice Thomas E Humphrey of Maine discusses how the legal profession can be improved by focusing on civility. He defines incivility as “all manner of adversarial excess, … personal attacks on other lawyers, hostility, boorish behavior, rudeness, insulting behavior, and obstructionist conduct, …as behavior that is disagreeable, impolite, discourteous, acerbic, acrimonious, obstreperous, ill-mannered, antagonistic, surly, ungracious, insolent, uncouth, disparaging, malevolent, spiteful, demeaning, vitriolic and rancorous--and sometimes all of these in one short deposition.”

    He explains that it is difficult to define civility, but suggests that civility goes beyond “treating other people with courtesy, dignity, and kindness.” He says it is “more than surface politeness; it is an approach that seeks to diminish rancor, to reconcile, to be open to non-litigious resolution.” He goes on to quote the Washington State Bar Association chief disciplinary counsel: “[C]ivility and professionalism relate to the basic level of trust and respect accorded by one person to another, of the level of confidence a lawyer or a judge can have in the word of another lawyer or a judge. Civility and professionalism form a framework for common expectations of mutual trust, of being treated with dignity, and ultimately set the stage for justice to be done.” Civility is necessary because the “the profession’s overriding goal is to make the promise of justice a reality.”

    He reviews systemic attempts to address incivility in the profession including various codes of civility and efforts made by the American Inns of Court. He suggests that law firms, judges, and law schools all play a role in promoting civility. He concludes that codes, oaths, and other initiatives are not the real solution. Rather, the effort to increase civility must come from within all lawyers “because the dignity and the worth of the profession are [theirs] to preserve or to lose.”


    View/hide the summary. View the full article.
  3. Julie Braman Kane, Chairman, NCA Bd. of Trustees, Address at the Educ. Program for AAJ 2007 Annual Convention in Chi., Ill.: Civility: It’s Not a Sign of Weakness, July 14, 2007
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    Summary

    Ms. Braman Kane defines civility and equates it with honesty and professionalism:  George Washington defined civility as “acting always with respect to those around you and by being controlled by your own conscience.” Abraham Lincoln, addressing new law graduates, stressed the importance of honesty.  A 19th-century Connecticut State Chief Justice stated that a lawyer must be honest, above all, and professional, warning against a system of “legalized plunder” where professionalism and honesty are bypassed.  The ABA Model Rules Professional Responsibility 4.1 and 8.4 require honesty and integrity.

    She states that regardless of the frequency, each instance of incivility and lack of professionalism has an outsized impact because it is remembered by all who encounter it.  Notions of billing the hours and winning the case have displaced the tradition of civility that used to be transmitted to young lawyers.

    She finally offers strategies to combat the culture of belligerence in practice:

    • A good rule of thumb is to “[m]ake your Mama proud.”
    • Choose an attorney mentor with whom you already have a relationship, someone to guide difficult decision-making.
    • Ask whether you would take a contemplated action in front of your parents or grandparents. Are you doing the right thing?
    • Dealing with opposing counsel, remaining civil and even cordial will make life easier.
    • Dealing with an uncivil judge, even more restraint is required, to protect your client’s interests and your reputation with the court.

    View/hide the summary. View the full article.

  4. Paula Lustbader, Igniting a Culture of Civility, WASHINGTON STATE BAR NEWS (January 2011)
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    Summary

    Outlining the goals of Robert’s Fund, Professor Lustbader defines civility broadly and pinpoints its significance in the legal profession. Lustbader understands civility to be more than just politeness—rather, civility is “courage with kindness.” She reasons that because lawyers are influential policy makers, encounter possibilities for conflict in their daily professional practice, and serve as role models for many people and communities, working to foster civility within the legal profession can promote greater civility in society generally. According to Lustbader, civility benefits lawyers personally, strengthens their profession, helps build meaningful relationships with clients, increases client loyalty and client base, and leads to more successful outcomes.

    View/hide the summary. View the full article.

  5. II. How listening fosters civility and promotes justice

  6. Kevin Burke & Steve Leben, Procedural Fairness: A Key Ingredient in Public Satisfaction (A White Paper of the American Judges Association), 44 CT. REV. 4, 12-13, 17-18 (2008).
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    Summary

    Judges Burke and Leben explain that perceptions of procedural fairness are essential to our legal system and democracy. Although judges and lawyers believe that justice is served when they believe the outcome is fair, the public believes that justice is served when they perceive the process as fair. When participants think the process was fair, they feel greater satisfaction with lawyers, the court, and the justice system. Perceptions of fairness increase the legitimacy of the courts and thus increase compliance with court orders and reduce recidivism. Perceptions of fairness can also “lessen the difference in how minority populations perceive and react to the courts,” where there is a common perception that “African-Americans, low-income people, and non-English speakers” will receive “worse results.” Among the seven or eight factors that contribute to perceptions of fairness, having a voice and participating in the trial, plea bargain, sentencing, and/or mediation proceedings particularly enhances perceptions of fairness. “[B]eing listened to is symbolically important, as it reveals that group authorities value the individuals’ standing in their social group (emphasis in original).” Judges can increase perceptions of fairness by “protecting the rights and human dignity” of persons who appear in their courtrooms and by treating them with respect.

    Judges can also become more aware of their non-verbal behaviors and how those impact people in their courtrooms. Interpersonal communication studies show that “nonverbal behaviors account for 60% to 65% of the meaning conveyed.” Furthermore, where nonverbal behaviors conflict with what is actually said, a listener is more likely to believe the nonverbal cue. A study of Fourth Judicial District judges in Hennepin County, Minnesota, found that 89% of the judges “believed their behavior in the courtroom affected the litigants’ satisfaction with the outcome of their case.” Ironically, however, this same study revealed that about one-third of judges exhibited counter-productive non-verbal behaviors such as “failure to make eye contact, focusing on a cup of coffee, and the use of a sarcastic, neutral, or exasperated tone of voice.” In addition, judges exhibited “actual displays of negative emotions, such as anger or disgust, sighing audibly, kicking feet up on the table, and ‘using self-oriented gestures such as rubbing, scratching, picking, licking, or biting parts of the body (to excess).’” Thus, one way judges can increase a perception of fairness in their courtrooms is to improve their non-verbal communication behaviors.

    Judges Burke and Leben conclude this article with suggestions for ways in which judges, their courtroom, court administrators, researchers, judicial educators, and court leaders can improve public perception of fairness in the courts. Among nine suggestions for judges are the following:

    • Use understandable language to ensure all participants understand the process. Explain what everyone can expect from the process, and ensure everyone understands your orders. “For example, explain why certain cases will be heard first or why what litigants or defendants can say is limited in time or scope.”
    • “Learn how to listen better. Listening is not the absence of talking.”
    • “Put something on the bench as a mental reminder that patience is a virtue not always easily practiced.”
    • “Arrange to have yourself videotaped… review the tape with a professional or colleagues who will aid your analysis, but even if no one sees it except you (and perhaps a partner or spouse), you can still learn a lot about how you are perceived by the people before you.”
    • “Thank people for their patience.”

    View/hide the summary. View the full article.

     

  7. G. M. Filisko, Be Nice: More States Are Treating Incivility as a Possible Ethics Violation, A.B.A J. (April 2012)
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    Summary

    Issues of incivility in the legal profession are becoming a greater concern given the heated general tone of public discourse.  Incivility may be on the rise because of the increase in pleadings and discovery, the pressure lawyers are under to bill their hours, and the media portrayal of lawyers that give clients an idea of how their lawyer ought to behave and give the lawyer an idea of how he/she ought to behave.

    Although there is no clear consensus of what is uncivil behavior, attacking a position or facts is probably within bounds; however, attacking an individual, “their training, personality, color, ethnicity, or age,” is where most would draw the line.

    Lawyers who behave uncivility can be subject to court sanctions and increasingly are subject to discipline for violating ethics rules.  Some states have enacted provisions that explicitly address civility.  However, there is no direct provision addressing civility in the ABA Model Rules of Professional Conduct, Model Rule 1.1 (addressing competence) and Model Rule 8.4 (addressing dishonesty, fraud, deceit or misrepresentation, and conduct “that is prejudicial to the administration of justice” are the two most common provisions cited as implicating civility issues.

    This article provides a few examples where disciplinary actions were imposed for uncivil behavior that demonstrate the unpredictability of what behavior a disciplinary panel will find merits a reprimand or disbarment and what such disciplinary actions courts will uphold.
    View/hide the summary. View the full article.

  8. Paula Lustbader, Listening from the Bench Fosters Civility and Promotes Justice (A White Paper), (Apr. 12, 2014).
    View the full article.

  9. Harry J. McCarthy, The Value of Civility in the Legal Profession, WASHINGTON STATE BAR NEWS (Aug. 2011)
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    Summary

    In “The Value of Civility in the Legal Profession,” Judge McCarthy argues that civility in the legal profession still has a way to go before it is fully integrated. Judge McCarthy states that uncivil behavior is rampant in our public sphere today, sending the message that “courtesy is a sign of weakness that does not get results.” He posits that civility is essential for professionalism and that professionalism is at the core of being a successful lawyer. “The very best attorneys, well-versed in the traditions of civility, can conduct an important cross-examination, even one of a hostile witness, and do so in such a productive and respectful manner that the goals of the cross are met while simultaneously maintaining a high standard of professionalism.” McCarthy concludes that despite the ways in which the law profession has changed, lawyers can and should be courteous, remain respectful, and act with integrity at all times in order to achieve success and to uphold the time-honored traditions of the legal profession.

    View/hide the summary. View the full article.

  10. Sandra Day O’Connor, Professionalism, 78 Or. L. Rev. 385 (Summer 1999)
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    Summary

    Justice O’Connor cites research that shows a high and increasing number of lawyers are dissatisfied with their profession; she suggests that declining professionalism is, in part, the cause of lawyers’ job dissatisfaction and the public’s unfavorable opinion of lawyers and the profession.

    According to Justice O’Connor, professionalism includes, along with technical skill, a calling to public service and an obligation to conduct oneself in a professional manner towards others. “Personal relationships lie at the heart” of lawyers’ work, and this “human dimension remains constant.”

    “When lawyers themselves generate conflict, rather than addressing the dispute between the parties they represent, it undermines our adversarial system and erodes the public’s confidence that justice is being served. Greater civility can only enhance the effectiveness of our justice system, improve the public’s perception of lawyers, and increase lawyers’ professional satisfaction.”

    “The common objection to civility is that acting courteously will somehow diminish zealous advocacy for the client….In my view, incivility disserves the client because it wastes time and energy: time that is billed at hundreds of dollars an hour, and energy that is better spent working on the client’s case than working over the opponent.”

    Lawyers have a duty to serve the public, and those who work to ensure “equal justice under law” and thereby make a contribution to society, “bring meaning and joy to [their] professional lives.”

    View/hide the summary. View the full article.

  11. III. Challenges to listening

    Vicarious trauma

  12. Jared Chamberlain & Monica K. Miller, Evidence Of Secondary Traumatic Stress, Safety Concerns, And Burnout Among A Homogeneous Group Of Judges In A Single Jurisdiction, 37 J. AM. ACAD. OF PSYCHIATRY AND THE LAW ONLINE 214 (2009),
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    Summary

    This article explores three occupational experiences of judges: secondary-traumatic stress, safety concerns, and burnout. Through an analysis of nine judicial case study interviews, the authors argue that judges are at risk for having these experiences. These experiences have the potential to affect judge’s personal lives negatively and impede their ability to perform duties at work to the best of their abilities.

    Secondary traumatic stress generally refers to “stress incurred from helping another person through a traumatic event.” Vicarious traumatization is a particular type of secondary traumatic stress that focuses on “transformations that occur in trauma workers as a direct result of empathetic engagement.” Judges may experience vicarious trauma to the extent that they assume responsibility of the well-being of the jury, the parties, and other actors in the courtroom. The study suggests that because the courtroom and the events that take place there are inherently emotional, judges may be prone to experience secondary traumatic stress.

    To reduce the impact of secondary traumatic stress the authors recommend:

    • Judges be trained to recognize the effects of occupational stressors;
    • Judges be encouraged to take time off to relieve the effects of difficult occupational experiences;
    • Safety should be a primary concern for all courthouses;
    • Judges should be provided the opportunity, information, and skills needed to protect themselves;
    • Steps should be taken to preserve professionalism within the courtroom; and
    • The government should provide greater funding to assess and address the experiences of judges to protect this important branch of government.

    View/hide the summary. View the full article.

     

  13. Peter G. Jaffee, Claire V. Brooks, Billie Lee Dunford-Jackson & Michael Town, Vicarious Trauma in Judges: The Personal Challenge of Dispensing Justice, 54 Juv. & Fam. Ct. J. 1, 2, 4-6 (2003)
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    Summary

    This study, authored by two clinical psychologists, an attorney, and a circuit court judge, finds that a majority of judges experience vicarious trauma. Vicarious trauma in this study is defined as “the experience of a helping professional personally developing and reporting their own trauma symptoms as a result of responding to victims of trauma.” Vicarious trauma, the authors contend, is distinct from “burnout” and PTSD, but can in many cases share similar symptoms. According to the study, three categories of factors influence a judge’s susceptibility to vicarious trauma: individual factors, organizational factors, and life-situation factors.

    The study finds that the most common short-term symptoms of vicarious trauma are sleep disturbances, intolerance of others, and physical complaints, while the most common long-term symptoms are sleep disturbances, depression, and feelings of isolation. Participants in the study identified a number of coping strategies used to combat symptoms of vicarious trauma, including physical activity, rest, socializing, peer support, and continuing education. Overall preventative measures identified by participants include “enjoying your job,” “moving on” after decisions have been made, maintaining a healthy balance between work and life outside work, and cultivating positive relationships with people inside and outside the legal profession .

    Overall, the study concludes that vicarious trauma is a highly subjective experience and that far more research needs to be done with regard to how vicarious trauma emerges and how vicarious trauma appears to impact different demographics of judges disproportionately (e.g., why a higher percentage of female judges report experiencing vicarious trauma). Importantly, the authors argue that there is an urgent need for those in the judicial community to discuss vicarious trauma and “prevention and intervention strategies.”
    View/hide the summary. View the full article.

  14. Joy D. Osofsky, Frank W. Putnam, & Cindy S. Lederman, How to Maintain Emotional Health When Working with Trauma, Juv. & Fam. Ct. J., Fall 2008 at 91, 92-94, 98-101
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    Summary

    Although the authors discuss all juvenile and family court workers, the article contains a section focused specifically on judges in this arena. Many of the authors’ insights are applicable in other courts, as well.

    People who work with victims, survivors, and/ perpetrators of traumatic events are susceptible to the effects of vicarious trauma (also referred to as compassion fatigue or secondary trauma). Vicarious trauma risk factors include:

    • “measuring your self worth by how much you help others;
    • having unrealistic expectations of yourself and others;
    • being self critical and a perfectionist;
    • fearing others will judge you if you show “weakness” (e.g., seek help or express your feelings);
    • being unable to give or receive emotional support;
    • overextending yourself; and
    • letting work bleed over into your personal time.”

     

    The authors note that the response to working with victims of direct trauma may differ, depending on the role of each worker within the child-welfare system. However, the responses share common signs and symptoms such as

    • “Cynicism, anger, or irritability
    • Anxiety or new fears, e.g., about the safety of one’s family
    • Emotional detachment, depersonalization, or a sense of numbness
    • Sadness, depression
    • Intrusive imagery or thoughts about victims, patients, or clients
    • Nightmares and difficulty sleeping
    • Social withdrawal and disconnection from family and friends
    • Changes in world view—sense of futility or pessimism about people
    • Changes in spiritual beliefs
    • Diminished self-care
    • Increased physical ailments and illness
    • Use of alcohol/drugs to ‘forget about work’ or ‘relax.’”

     

    In addition to sharing common symptoms of vicarious trauma, all workers share common organizational contributing factors including

    • high caseloads and excessive workloads and paperwork;
    • “being placed in situations with conflicting roles, expectations, or values;”
    • lack of peer or supervisor support or recognition;
    • “inadequate resources;”
    • “concerns about personal safety;” and
    • “[b]eing forced to assume personal liability for job-related decisions and actions.”

     

    Workers’ vicarious trauma impairs organizational function, through

    • “impaired judgment”;
    • decreased motivation, productivity, quality, willingness to assume more work and responsibility, and compliance with requirements; and
    • “increased absenteeism,” friction among staff, and “staff turnover.”

     

    In a 2007 informal focus group, judges listed the following as “primary concerns” that contributed to vicarious trauma:

    • “Caseload (can’t manage large caseload consistently)
    • Stress level with work
    • Non-judgmental role that a judge has to take
    • Lonely world and profession (cannot share cases and decisions)
    • Can’t take cases home and get support
    • Does not feel safe for judges to say they are having problems and need help
    • Difficult to open up about personal issues
    • Anger and frustration
    • Helplessness, hopelessness, and depression about the cases”

     

    According to a 2007 survey of 45 judges who worked in “areas including dependency, delinquency, domestic violence, and divorce/custody[,]…53% had not received training about child trauma, its assessment and treatment. Judges reported feeling overwhelmed by the prevalence of trauma in the courtroom, the magnitude of the needs of the children and families, lack of resources, placement concerns related to best interest of the child, coordination with other service systems, and confidentiality issues.” Judges expressed interest in obtaining more information and resources to help them understand, evaluate, communicate, assess intervention strategies, and support “resilience in response to trauma.” They wanted more training on how to communicate and listen to children. And they wanted “increased information about vicarious traumatization and compassion fatigue including personal and institutional prevention and intervention strategies.”

    The authors recommend strategies for individuals to prevent and treat vicarious trauma, such as using self-assessment checklist “not to pathologize secondary traumatic stress, but to help the person understand that these are expectable effects of exposure to the trauma and suffering of others. Individuals with moderate to high scores or other evidence of secondary traumatization are urged to utilize various self-care and stress reduction strategies. Some of these strategies involve personal lifestyle changes such as eating regularly, getting sufficient exercise and sleep, taking more time for themselves, and developing outside interests.” In addition, the authors note that recommendations for self-care often include “[s]trategies for psychological, emotional, and spiritual self-care.”

    They also recommend the following organizational strategies to reduce vicarious trauma:

    • “Reduce caseloads/workloads
    • Provide adequate supervision for frontline workers
    • Provide good mental health insurance coverage
    • Explicitly acknowledge the job stress and the possibility of work-related secondary traumatization of staff
    • Provide staff educational workshops to increase individual awareness, develop peer support, decrease traumatized individuals’ sense of isolation, and encourage self-care
    • Provide adequate coverage and backup for staff in stressful positions
    • Encourage ongoing discussion of secondary trauma among staff and administration”

     

    The authors conclude with the following recommendations for helping judges with vicarious trauma:

    • Provide opportunities for judges to share their experiences with judge from different jurisdictions where they can feel less vulnerable and where “there is less competition among those present who may be seeking election or appointment to positions in their respective communities.”
    • “[E]ducate judges about potential sources of vicarious trauma so they can recognize secondary trauma in themselves more readily and manage their distress. For example, irritability on the job, increased alcohol use, depression, or posttraumatic stress reactions can all be signs of secondary traumatization.”
    • Help judges understand that vicarious trauma is a normal reaction to “hearing multiple cases of trauma” day after day. “In recognizing these facts, judges may also allow themselves to seek support including professional help if indicated and available. They may also become more aware of the need for practicing self-care.”
    • Provide training to help judges learn “how to listen to children tell about the horrors they have experienced at the hands of their parents and then respond to the child in a helpful, appropriate way. Maintaining the ability to be sympathetic, caring, and strong, and still dispassionate, can often be difficult and at times impossible.”
    • Encourage judges to realize that it might be “necessary to take a break from dependency and family court and heal. Sometimes judges hate to admit that they are human and, like everyone else, can suffer from daily exposure to their respective worlds of omnipresent deprivation and impoverishment where they are responsible for the lives of others.”
    • “Perhaps the most important message we can provide related to vicarious traumatization is that sometimes, in order to do no harm, judges must help themselves.”

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  15. Isaiah M. Zimmerman, Helping Judges In Distress, Judicature, July-Aug. 2006, at 10, 10-13, 15
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    Summary

    Dr. Zimmerman, a clinical psychologist who has treated many judges in his 30-year career, writes that a significant number of judges suffer from psychological distress, such as anxiety, depression, substance abuse and addiction, marital and family issues, and mid-life crises. These conditions “can underlie a reduction in productivity, tardiness in opinion writing, clashes within the judicial administration and hierarchy, and intemperate and inappropriate behavior on or off the bench.” However, judges do not commonly seek assistance from Bar-Association-sponsored assistance programs offered for judges, because of concerns of privacy and confidentiality, as well as fear of stigmatization for having “possible mental illness, diminished capacity of judgment, and the charge of malingering to evade misconduct charges.” All of these factors are exacerbated in states where judges are subject to electoral process for obtaining or retaining their position on the bench. Moreover, when they do seek psychological treatment, their need for privacy and confidentiality limits some treatment options — most significantly, group therapy, which often, as in the case of treatment for addictions, may be the most effective and expeditious treatment modality. Even though addiction-oriented group therapy may be characterized as anonymous, the anonymity and confidentiality offered is voluntary and therefore risky for judges.

    Dr. Zimmerman goes on to discuss, in more detail, the following most common issues for which judges seek help:

    • Health and medical issues, including illness of family members
    • Mental health
    • Substance abuse and addiction
    • Career and organizational stressors
    • Marital and family issues
    • Aging and retirement

     

    Dr. Zimmerman cites the judicial culture and self-identity as contributing to judges’ need for help. For example, he explains that judges are isolated and are held to high and often unrealistic expectations. He advocates for a sustained cultural shift to better assist judges in distress by creating a “Wellness Initiative”. The following are among his suggestions:

    • Widening assistance
    • Assuring confidentiality by court rules
    • Providing recovery counseling and group treatment provided by outside agency
    • Systemic orientation and education for judges, including special training for chief and presiding judges

     

    He concludes that “[j]udges work at the convergence of powerful demands, quite unlike those that confront other high officials. Heavy dockets, restrictions on their public speech and behavior, intense media exposure, wide public ignorance of the role of the courts, and the relative isolation of the judicial position all contribute to their unique personal and occupational stresses. The current body of knowledge and practice in positive health maintenance and psychology can inform and help judges. A Wellness Initiative program would contribute immeasurably to the quality of life of judges, their families, and coworkers.”
    View/hide the summary. View the full article.

  16. Additional resources

  17. The National Child Traumatic Stress Network Website http://www.nctsn.org contains a comprehensive list of recommendations, including the Child Welfare Trauma Training Toolkit.

  18. The National Child Traumatic Stress Network Website’s Self-Care Inventory can be found at http://www.nctsn.org/nctsn_assets/pdfs/cwt3_sho_inventory.pdf.

  19. Cross-cultural communication and implicit bias

  20. Lera Boroditsky, Lost in Translation, The Wall Street Journal, July 23, 2010
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    Summary

    Language impacts our thinking; how we see, understand, and interpret events; and our relationship to time, space, and causality.

    That language influences our thinking has been demonstrated in studies of Russian language speakers, indigenous tribes, the Piraha, and Spanish and Japanese language speakers. Because the Russian language has more words for light and dark blues, Russian speakers have greater ability to visually discriminate shades of blue. Because some indigenous tribes use “north, south, east and west” instead of “left” and “right” to indicate direction, members of these tribes have great spatial orientation. Because the Piraha use inexact terms such as “few” and “many” instead of actual numbers to quantify, they are not able to keep track of exact quantities. Because Spanish and Japanese languages don’t have agents of causality of accidents, ("The vase broke itself," rather than "John broke the vase.") they are less able to remember the agent of the accident. In a study comparing cross-linguistic eye-witness memory of Spanish, Japanese, and English speakers, subjects watched videos of people doing something intentionally or accidentally. When asked to recall who did the action, Spanish and Japanese speakers were able to remember the agents of intentional events as well as English speakers because their language would mention the agent of intentional events; however, they were not able to remember the agents of accidental events as well as English speakers.

    Language also influences our ability to orient ourselves in physical environments as well as how we use “spatial knowledge to build many other more complex or abstract representations including time, number, musical pitch, kinship relations, morality and emotions.”

    In one study, subjects were asked to arrange pictures in a temporal order, in two separate sittings, each time facing in a different cardinal direction, but they were not told in which cardinal direction they were seated. In both sittings, the English speakers arranged time from left to right-the direction that English is written, and the Hebrew speakers arranged from right to left-the direction the Hebrew is written, regardless of the cardinal direction in which they were seated. However, the Pormpuraawans, arranged time from east to west regardless of the cardinal direction in which they were seated. “That is, seated facing south, time went left to right. When facing north, right to left. When facing east, toward the body…The Pormpuraawans not only knew that already, but they also spontaneously used this spatial orientation to construct their representations of time.”

    Language patterns also demonstrate “a culture’s dispositions and priorities. For example, English sentence structures focus on agents, and in our criminal-justice system, justice has been done when we've found the transgressor and punished him or her accordingly (rather than finding the victims and restituting appropriately, an alternative approach to justice). So does the language shape cultural values, or does the influence go the other way, or both?”

    The language “we speak not only reflect or express our thoughts, but also shapes the very thoughts we wish to express. The structures that exist in our languages profoundly shape how we construct reality.”
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  21. Roger O. Crockett, Listening is Critical in Today’s Multicultural Landscape, Harv. Bus. Rev. Blog Network (Mar. 14, 2011, 2:15 PM)
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    Summary

    In this blog post, Mr. Crockett posits that remembering what a person hears is based less on how good a person’s memory is and more on how effectively he or she listens to others. Moreover, in the multicultural environments that characterize today’s modern marketplaces, he argues that good listening is a key to maximizing performance. Mr. Crockett writes, “Communicating well across different cultures requires listening closely enough to not only hear the words but to grasp true meaning. By doing so, you enhance productivity and add to your ability to communicate without conflict or misunderstanding.” He contends that embracing and positively responding to diversity in the workplace requires people to refrain from having knee-jerk reactions (often based in previously held cultural assumptions). He refers to this as “listening with empathy.”
    View/hide the summary. View the full article.

  22. Jerry Kang et al., Implicit Bias in the Courtroom, 59 UCLA L. REV. 1124 (2012)
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    Summary

    Professor Jerry Kang et al. explain that human behavior is influenced by an array of biases, many of which are not rational. Many of these function below the conscious level. Much of the work in the anti-discrimination arena focuses on attitudes and stereotypes about social groups. The conventional conceptualization has been that such biases “are explicit, in the sense that they are both consciously accessible through introspection and endorsed as appropriate by the person who possesses them…[and they] are relatively stable, in the sense that they operate in the same way over time and across different situations.” However, “attitudes and stereotypes may also be implicit, in the sense that they are not consciously accessible through introspection. Accordingly, their impact on a person’s decision making and behaviors does not depend on that person’s awareness of possessing these attitudes or stereotypes.” As a result, these implicit biases “function automatically, including in ways that the person would not endorse as appropriate” if he or she were consciously aware of them.

    The majority of judges view themselves as being objective. One study showed that 97 percent of judges “believed that they were in the top quartile in “avoid[ing] racial prejudice in decision making.” Another study showed that 97.2 percent of administrative agency judges “put themselves in the top half in terms of avoiding bias.” In both instances, it is mathematically impossible for 97 percent to be in the top quartile or top half, so the judges’ self-perception is necessarily suspect.

    Although we cannot eliminate implicit biases, we can mitigate their impact on decision-making and behavior. To do so, Professor Kang et al. recommend the following strategies:

    1. Learn more about diverse groups.
      To decrease implicit bias in general, we can associate with people from groups with whom we have formed a negative stereotype; thus, through changing our experience of people from such groups, we can change our implicit attitudes about them. Or increase vicarious contact with such groups through books, films, and other media that counter such stereotyping.
    2. Doubt one’s objectivity.
      Studies indicate that people are more prone to act with implicit bias when they believe they are objective, as the judges described above did. But being skeptical about one’s lack of bias is a first step in addressing it.
    3. Learn about implicit bias.
      Through formal judicial education channels and self-study, judges can be internally motivated to address the impact of implicit bias, once they become aware of the problem and the science underlying it. In a judicial training session in California, judges viewed “a documentary on the neuroscience of bias.” Before and after viewing the film, they were asked on a scale from “rarely-never” to “most-all”, to what extent they thought “a judge’s decisions and court staff’s interactions with the public can be unwittingly influenced by unconscious bias toward racial/ethnic groups.” Before the film, 30 percent chose “most-all,” compared to after the film when 79 percent chose “most-all”. Using the same scale, they were asked whether implicit bias could “impact behavior even if a person lacked explicit bias.” Before the film, 45 percent chose “most-all,” compared to after the film, where 84 percent chose “most-all.” After this training, when asked if they would apply the course content to their work, 90 percent of the judges “agreed or strongly agreed.”
    4. Slow down and improve conditions of decision-making.
      Judges are under pressure of high caseloads and the need to respond quickly. Evidence suggests “that certain elevated emotional states, either positive or negative, can prompt more biased decision-making.” Even happiness “increases stereotypic thinking…. Of greater concern might be feelings of anger, disgust, or resentment toward certain social categories. If the emotion is consistent with the stereotypes or anticipated threats associated with that social category, then those negative emotions are likely to exacerbate implicit biases.”
    5. Reflect on decision-making.
      Judges “should engage in more quantified self-analysis and seek out and assess patterns of behavior that cannot be recognized in single decisions…. It may be difficult to correct biases even when we do know about them, but it is virtually impossible to correct them if they remain invisible.”

    View/hide the summary. View the full article.

     

  23. David Kreider, Inter-Cultural Dynamics in Peacemaking: The Arab-Israeli Case in Point, Practice: Skills for Conflict Transformation, (2007)
    View/hide the summary. View the full article.

    Summary

    In this essay,David Kreider (not to be confused with international arbitrator David L. Kreider, whom we previously and erroneously attributed to this post) offers an analysis of the role of mediators and different mediation styles and applies his findings to the Arab-Israeli conflict. Drawing upon the work of many scholars who have written about mediation, conflict, and Israel-Palestine, Mr. Kreider compares and contrasts a Western, individualist approach to conflict with a non-Western, collectivist approach. Using scholar Walter Wright’s definitions of “individualist” and “collectivist,” Mr. Kreider writes, “Individualists tend to place a higher value on the preferences, needs, rights, freedoms, opportunities, and goals of the individual, and in the process, relationships are often relegated to a secondary consideration. Collectivists, on the other hand, place a premium on the interests, norms, and values of the group and on maintaining relationships of respect, cooperation, and harmony within the community often at the expense of individual liberties, needs, and interests.” A key difference described by Mr. Kreider between the two approaches is that individualists tend to view conflict as necessary for change, while collectivists most often view conflict as a failure to respect the traditions and values of a group. Another key difference described by Mr. Kreider is that during conflict, individualists tend to favor direct communication and confrontation, while collectivists tend to be less direct about the problems causing the conflict and more focused on maintaining relationships, harmony, and interdependence.

    Mr. Kreider draws from the work of scholars John Winslade and Gerald Monk to argue that for mediators, it is important to think about conflict not as a clash between different individual needs and interests, but as the result of “culturally diverse perceptions of truth, meanings, beliefs, knowledge, power, and privilege.” Thinking of conflict in this way is useful for mediators, Mr. Kreider says, because it allows for a more thorough and clear way of deconstructing discourse. Mr. Kreider posits that the most effective strategy for mediation is for mediators to take an “emic” approach to finding a satisfying resolution for all sides. An emic approach “attempts to incorporate patterns of relating that are indigenous to a culture’s traditions and styles.” Mr. Kreider argues that a productive intercultural dialogue tries to merge paradigms—in this case, individualist and collectivist mindsets—and works with the already established ideas and customs of each party, rather than employing unfamiliar or nonindigenous strategies to resolve a conflict. Emic integration, Mr. Kreider contends, is a key to skillful and sustainable peacebuilding.

    Mr. Kreider uses examples of experiences between Israelis and Palestinians to illustrate some of his points regarding conflict mediation. Analyzing different interactions between the two groups, Mr. Kreider finds that recognizing the identity and dignity of others is a “universal marker for our sense of social meaning whether primarily individual or collective in its origin.” In this way, he concludes that it is in humankind’s interest—from both an individualist and collectivist perspective—to learn to bridge cultural gaps in order to better understand and ultimately resolve conflicts of all kinds. This way of cultural understanding, he argues, is a nonnegotiable “price to pay for peace.”
    View/hide the summary. View the full article.

  24. Jeff Tolman, Looking at the World Through Other People’s Eyes, 66 Wash. Bar News 3, (Mar. 2011)
    View/hide the summary. View the full article.

    Summary

    Lawyers must be able to see from variety of perspectives including those of the judge, the client, the opponent, the witness, and Father Time. They must consider the case through the judge’s perspective and ensure that the argument is legally sound, makes sense, and furthers the cause of justice.

    Lawyers must not only be able to understand clients, but they must also be able to tell clients’ stories in a human, personal way in order to “bring life to their argument.” Mr. Tolman writes about a colleague who had a client who was in a nursing home. To better understand his client’s situation and to better convey the client’s story, this colleague spent two days in bed in the nursing home next to his client’s bed.

    Lawyers must consider the case through their opponent’s perspective and anticipate their defenses, arguments, and strategies.

    The perspective of witnesses is critical, as well. Lawyers must turn “their place in the case into a puzzle piece that fits nicely, and favorably to the client.”

    Finally, lawyers must view the world from the perspective of Father Time – i.e., “the best result does not [necessarily] give immediate gratification, but over time is a wise, practical solution.”
    View/hide the summary. View the full article.

  25. Mary I. Yu, Civility in Our Conversations about Race and Culture, 66 Wash Bar News 5, (May 2011)
    View/hide the summary. View the full article.

    Summary

    Judge Yu proposes that civility should be used both within and outside the legal profession to start important and necessary conversations about race. “Civility calls us to a state of compassion and empathy. An active and civil engagement about a difficult topic such as race would also permit us to reveal our own biases, share our unfamiliarity of traditions and practices, and expose our ignorance of certain facts without causing personal pain to another. And when we inadvertently cause pain to another, civility requires an apology and a request to rewind and start over. At the same time, the practice of civility also requires vulnerability; it means that some of us must take the risk of sharing the pain of being on the receiving end of bigotry, both real and perceived, with the hope that the listener might better understand its impact.”

    Judge Mary Yu writes that members of non-dominant communities need to practice “patience and restraint: patience in having to repeat what has been said by others so many times before and in having to share once again; and restraint from reacting at an emotional level to what we think we heard.” While it might seem like “a lot of work” to have this sort of cross-cultural conversation, she points out, for example, that the different experiences of African Americans and European Americans with the criminal justice system continue to make the conversation necessary. Despite progress over the past decades in achieving equality for all, there still exists “a massive racial chasm” in the perception of whether justice will be delivered fairly. “We must ‘bother’ with listening and learning about the many forms of racial injustice experienced by communities of color and find ways we can move forward together.”
    View/hide the summary. View the full article.

  26. Additional resources

  27. Susan Bryant & Jean Koh Peters, Five Habits for Cross-Cultural Lawyering, in RACE, CULTURE, PSYCHOLOGY & LAW 47-62 (Kimberly Holt Barrett & William H. George eds., Sage Publishing, Inc. 2005)
    View the full article.

  28. Kim O’Leary, Nelson Miller, Tracey Brame & Dale Iverson, Cultural Competence as a Professional Skill, in REFLECTIONS OF A LAWYER’S SOUL: The Institutional Experience Of Professionalism At Thomas M. Cooley Law School 175-206 (Amy Timmer & Nelson Miller eds., William S. Hein & Co., Inc. 2008).

  29. IV. Foundations of civility as a listening strategy; General principles for listening

    Consciousness

  30. Amanda Enayati, Seeking Serenity: When Lawyers Go Zen (May 2011)
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    Summary

    Ms. Enayati states that meditation not only can help lawyers avoid the propensity for depression, substance abuse, and dissatisfaction, but more importantly, it also helps lawyers be more effective and is influencing the practice. She explains that mindfulness practice for lawyers is becoming much more common, along with mindfulness-related law-school courses, retreats, workshops and CLEs. Notably, Justice Stephen Breyer sits quietly for 10-15 minutes, twice a day, thinking about nothing or as little as possible. Although he doesn’t call it “meditation,” he says it makes him “more peaceful, focused and better able to do [his] work.” Beyond stress management, mindfulness practice helps lawyers be more focused, more active listeners, better at helping clients, and better at serving justice. Mindfulness practice is also contributing to innovations in the law. These include collaborative law in family practice, which emphasizes trouble-shooting and problem-solving in divorces, rather than a fight to win, and restorative justice in criminal law, which focuses on reconciliation, restoration, healing, and rehabilitation. Overall, there is a movement towards the emergence of law as a healing profession and lawyers as peacemakers.

    View/hide the summary. View the full article.

  31. Leslie A. Gordon, Law Prof Teaches Meditation Techniques for Lawyers, A.B.A. J. (Feb. 1, 2014)
    View/hide the summary. View the full article.

    Summary

    Professor Charles Halpern is currently a scholar in residence at University of California at Berkeley’s Boalt Hall and director of the Berkeley Initiative for Mindfulness in Law. He is a pioneer in the contemplative law movement, having led meditation retreats for law professors and law students in the 1990’s for Yale Law School. He currently teaches a course on effective and sustainable law practice at Boalt Hall and offers retreats for legal professionals in Marin County, California. 

    Prof. Halpern explains that through a regular practice of reflection and meditation, lawyers learn

    “a cluster of emotional intelligence skills that are undervalued in legal practice and education.”

    In addition, such practices enhance “listening skills, improve…focused attention in complex situations and enable…attorneys to make empathetic connections with others.”

    View/hide the summary. View the full article.

  32. Janet Ellen Raasch, Putting Relaxation Back Into Firm Retreats: Loosening Up the Lawyer Mind, 32 Law Prac. (Jan.-Feb. 2006).

    View/hide the summary. View the full article.

    Summary

    Ms. Raasch writes that progressive law firms are making their annual retreats more engaging and productive through creative use of relaxation. Techniques have included a wide range, from talent shows and spas to paintball and horse whispering. Play and leisure can foster collaboration, strategic thinking, and problem-solving skills.

    Patrick McKenna, explains that the most successful firm retreats have one or more of the following five principal goals: To develop a consensus among the firm members; to create a strategic plan; to conduct internal business; to provide skills training; and/or “to create an opportunity for lawyers to get to know one another in a relaxed setting.”

    By shifting how lawyers think and increasing collaboration, firms benefit. Lawyers also reap benefits by allowing themselves to break away from their mental ruts and patterns.

    These progressive retreats can include selecting locations where there is no cell phone service to allow the lawyers to be more present. This allows lawyers to learn how to relax in their own individual ways.

    Successful retreats have inspirational presenters, team-building activities, and exercises to clear the mind such as group walks, yoga tennis, and rafting.

    Emphasizing the emotional, spiritual, psychological, and social well-being of those who practice law provides lawyers the opportunity to de-stress. The end result is a relaxed lawyer who is a more productive member of a team, allowing him or her to stay focused and improve his or her analytical skills.

    View/hide the summary. View the full article.

  33. Stella Rabaut, Lawyers: Leading with Integrity, Washington State Bar Association, (October 2013)

    View/hide the summary. View the full article.

    Summary

    Ms. Rabaut suggests that lawyer leadership work begins with inner personal work that helps the legal profession evolve into a more conscious, creative and collaborative practice:

    • Consciousness — undertaking mindfulness exercises helps lawyers feel and perform better, derive and deliver more satisfaction, and relieve suffering in themselves and others.
    • Creativity — viewing law as a healing profession turns adversaries into healers, provocateurs into peacemakers, entrepreneurs into service providers.
    • Collaboration — shifting from an adversarial and competitive stance to one of collaboration and problem-solving for their clients can achieve more satisfying results.

    She advocates for lawyers to integrate the rational and logical skills of the head with the reflective, imaginative, and relational skills of the heart. Among the practical behaviors to engender this integration, she suggests that lawyers establish time for reflection, time for pursuing clarity about underlying values, and time for constantly reassessing their actions and deeper purpose.

    View/hide the summary. View the full article.

  34. Robert Zeglovitch, The Mindful Lawyer, GPSolo Magazine (Oct.-Nov. 2006), available at:

    http://www.americanbar.org/newsletter/publications/gp_solo_magazine_home/gp_solo_magazine_index/mindfullawyer.html (last visited March 1, 2014).

    View/hide the summary. View the full article.

    Summary

    Mr. Zeglovitch advocates for lawyers to practice what he calls “mindfulness meditation.” To practice mindfulness meditation, a person must mentally and physically slow down enough to become aware of movement within and around them. Mr. Zeglovitch explains that a mediation practice can benefit lawyers for the following reasons:

    • Stress-related health problems, depression, and substance abuse rates are high for lawyers; meditation is proven to reduce the effects of stress, which can help lawyers.
    • Lawyers measure themselves in terms of success and failure. “Meditation practice has no expectations of outcome; the goal is simply to be….Lawyers can benefit from regularly setting aside a mind consumed by winning and losing.”
    • Lawyers “are chronically on deadline and overbooked….Mindfulness meditation affords an opportunity to experience time in a completely different, non-linear way.”
    • “Lawyers tend to be judgmental….Mindfulness meditation encourages the cultivation of a deep acceptance of things as they are, instead of our habitual judgment of our experience. This does not mean that the mindful lawyer stops being a zealous and effective advocate—many famous Zen masters were renowned for their ferocious presence. The practice of loosening judgment’s hold can help develop qualities that are diminished or have been neglected: wisdom, tolerance, and compassion.”
    • “Lawyers are trained to think their way out of problems….Mindfulness meditation draws on innate awareness that is prior to thinking and language.”

    At the end of the article, Mr. Zeglovitch offers additional information on how to do mindfulness meditation, as well as resources related to mindfulness meditation.

    View/hide the summary. View the full article.

  35. Additional resources

    DANIEL GOLEMAN, EMOTIONAL INTELLIGENCE (Bantam Books 1st ed. 1995).

    RICK HANSON, BUDDHA’S BRAIN: THE PRACTICAL NEUROSCIENCE OF HAPPINESS, LOVE & WISDOM (New Harbinger Publications 1st ed. 2009).

    Creativity

  36. Steven Keeva, Lose the Box (Sept. 12, 2004, 11:46 AM CST), A.B.A. J.
    View/hide the summary. View the full article.

    Summary

    Mr. Keeva explores the loss of creativity in law school. He observes that when law students’ motivations shift from internal to external ones — a well-documented process in the first year of law school — they often lose their creativity at the same time.

    The California Western Law School’s focus on solving legal problems is a valuable shift in sustaining the creative juices for law students. Thomas Barton, who teaches creative problem-solving and preventative law at Cal Western, believes our communities require well-solved problems. In addition “doing creative work feels great.”

    Two of the most common steps for effective problem solving are to expand the context and build skills for preventing and resolving problems.

    Even though in the short run, when lawyers solve problems quickly and creatively, they might lose the ability to bill more hours, Mr. Keeva suggests that the value added is the lawyer’s reputation for saving clients money and heartache and that this can result in more client referrals.

    View/hide the summary. View the full article.

  37. Daniel H. Pink, Revenge of the Right Brain: Logical and precise, left-brain thinking gave us the Information Age. Now Comes the Conceptual Age - ruled by artistry, empathy, and emotion, Wired, Issue 13.02 (2005)
    View/hide the summary. View the full article.

    Summary

    Mr. Pink posits that our economy has shifted from the Information Age, which was based largely on left-brain logic skills, to the Conceptual Age, which requires more right-brain inventive and empathic skills. He explains that “[w]e've progressed from a society of farmers to a society of factory workers to a society of knowledge workers. And now we're progressing yet again - to a society of creators and empathizers, pattern recognizers, and meaning makers. He attributes this shift to Asia, automation, and abundance.

    Mr. Pink explains that work which requires routine left-brain information skills such as research, computer coding, accounting, and financial analysis are now outsourced to Asia, or can be automated through computer digitization.  As such, there is an abundance of work product available that reduces the costs of such work.  He uses lawyers as an example.  “Dozens of inexpensive information and advice services are reshaping law practice. At CompleteCase.com, you can get an uncontested divorce for $249, less than a 10th of the cost of a divorce lawyer. Meanwhile, the Web is cracking the information monopoly that has long been the source of many lawyers' high incomes and professional mystique. Go to USlegalforms.com and you can download - for the price of two movie tickets - fill-in-the-blank wills, contracts, and articles of incorporation that used to reside exclusively on lawyers' hard drives. Instead of hiring a lawyer for 10 hours to craft a contract, consumers can fill out the form themselves and hire a lawyer for one hour to look it over. Consequently, legal abilities that can't be digitized - convincing a jury or understanding the subtleties of a negotiation - become more valuable.”

    Mr. Pink further suggests that more and more, people are searching for deeper meaning and purpose in their lives.  We now need to enhance our “aptitudes that are "high concept" and "high touch." High concept involves the ability to create artistic and emotional beauty, to detect patterns and opportunities, to craft a satisfying narrative, and to come up with inventions the world didn't know it was missing. High touch involves the capacity to empathize, to understand the subtleties of human interaction, to find joy in one's self and to elicit it in others, and to stretch beyond the quotidian in pursuit of purpose and meaning.”

    View/hide the summary. View the full article.

  38. Janet Ellen Raasch, Inspired by the Wonder of Poetry, A.B.A.
    View/hide the summary. View the full article.

    Summary

    Can even the most cynical lawyer be softened by poetry?  Yes, according to Janet Ellen Rausch who describes a law firm retreat that incorporated poetry, mosaic building and a significant contribution to a local school library.  School children wrote letter of thanks to the attorneys and the lawyers responded.  This is community in action. 

    Dr. Maya Angelou and David Whyte inspired the lawyers at Gibson, Dunn and Crutcher with their poetry.  Artist Synthia Saint James contributed with her design for a mosaic that the 800 lawyers constructed together.

    William Wegner, a trial partner described the retreat.  “It was an experience that provided something for the spirit and soul of everyone in the firm.” 

    View/hide the summary. View the full article.

  39. Community

  40. A.B.A., Staying connected to friends and family, not necessarily your PDA, helps keep stress at bay (Sept. 2011)
    View/hide the summary. View the full article.

    Summary

    Experts on stress reduction at an ABA meeting in Toronto in 2011 suggested 5 steps to balance one’s professional and personal life:

    1. Stay true to your values.
    2. Don’t demonize the other side.
    3. Maintain connections with friends and family.
    4. Set boundaries around clients contacting you.
    5. Be careful and monitor the impact of electronic-communications technology.

    View/hide the summary. View the full article.

  41. Celeste F. Bremer, Fostering Civility Within the Legal Profession: Expanding the Inns of Court Model of Communal Dining.
    View/hide the summary. View the full article.

    Summary

    Judge Bremer writes that in addition to good manners and respect, civility also includes “concern for the public good.” Further, she explains that ethics and professionalism are analytically distinct from civility: Professionalism defines “what a lawyer ‘should’ do”; ethics are the “minimums by which a lawyer must act….” She suggests the civility requires lawyers to “go one step further.”

    She summarizes examples where lawyers’ “rhetoric and adversarial excess” have been sanctioned in different jurisdictions. She also includes a review of civility codes of conduct and the ABA Model Rules of Professional Responsibility. 

    Judge Bremer proposes that expanding the Inns of Court communal-dining model can foster civility in the profession. She provides a summary of the Inns of Court model and offers examples of a law firm, local bar organizations, and other groups that organize potlucks and communal dinning. Finally, she cites research that demonstrates that communal dining experiences reduce stress by providing social support and that such social support and interaction enhances productivity, innovation, and “restores one’s self-concept or interpersonal relationships.”   

    View/hide the summary. View the full article.

  42. David Brooks, Nice Guys Finish First, N.Y. Times (May 16, 2011)
    View/hide the summary. View the full article.

    Summary

    Mr. Brooks questions the validity of the prevailing notion that humans are innately selfish, competitive, and motivated only to maximize their own benefit. He summarizes several recent articles and books that discuss the intrinsic human motivation to work in teams and the inherent value of cooperation. “These are books about sympathy, empathy, cooperation and collaboration, written by scientists, evolutionary psychologists, neuroscientists and others. It seems there’s been a shift among those who study this ground, yielding a more nuanced, and often gentler picture of our nature.”

    “[W]e often have an incentive to repay kindness with kindness, so others will do us favors when we’re in need. We have an incentive to establish a reputation for niceness, so people will want to work with us. We have an incentive to work in teams, even against our short-term self-interest because cohesive groups thrive. Cooperation is as central to evolution as mutation and selection.”

    One study “found that the act of helping another person triggers activity in the caudate nucleus and anterior cingulate cortex regions of the brain, the parts involved in pleasure and reward. That is, serving others may produce the same sort of pleasure as gratifying a personal desire.”

    “[N]atural selection takes place not only when individuals compete with other individuals, but also when groups compete with other groups. Both competitions are examples of the survival of the fittest, but when groups compete, it’s the cohesive, cooperative, internally altruistic groups that win and pass on their genes….[H]umans developed moral minds that help them and their groups succeed. Humans build moral communities out of shared norms, habits, emotions and gods, and then will fight and even sometimes die to defend their communities.” 

    View/hide the summary. View the full article.

  43. Isaiah M. Zimmerman, Isolation in the Judicial Career, 36 CT. REV. 4 (2000)
    View/hide the summary. View the full article.

    Summary

    Dr. Zimmerman writes that in his twenty years of working as a consultant or psychotherapist with state and federal judges, approximately 70% of judges that he has interviewed spontaneously have expressed that they feel isolation. The demanding workload contributes significantly to this isolation, as the average judge works evenings and weekends. They have limited time for family, friends, community service, and engaging in other interests. In addition, the Code of Judicial Conduct requirement to maintain an appearance of fairness contributes to the isolation. Judges explain they keep their distance at social and professional gatherings and are careful about their comments. The role of judge itself contributes to the isolation, as well. Once one becomes a judge, “former lawyer colleagues immediately begin to show deference,” and this barrier between judges and lawyers is reinforced by the formalities of the courtroom and wearing of robes. Over time, judges can experience greater difficulty shedding their “robes” even in close personal settings. Another result is a reduction in “honest and robust dialogue” that furthers the isolation. These systemic factors that contribute to isolation are exacerbated by the fact that a majority of judges tend toward introversion, thus making it even a greater challenge to avoid isolation. All of this combines to create greater interpersonal isolation, resulting in a “withdrawal from intellectual and community involvement.”

    Although “isolation is an inherent part of the role judges must play in society,” judges can take measures to mitigate the isolation by doing the following:

    • “Aggressively holding on to old and childhood friends. We all need witnesses to our stages of life.”
    • Maintaining a supportive group of family and friends with whom they you can share an open and “honest mutual appraisal and dialogue.”
    • Engaging in activities that are unrelated to the “legal and judicial world” and form friendships with people not related to these fields.
    • Learning and practicing stress management.
    • “Periodically serving as a mentor to a new judge.”

    View/hide the summary. View the full article.

  44. V. Specific strategies to improve listening

  45. Carol Bailey-Medwell, Enhancing Civility and Maintaining Privacy for Your Clients, Washington Family Law Deskbook (2d. ed.) 2000 plus 2012 supplement, Chapter 6.
    View the full article.

  46. Donna F. Howard, Learning to Listen, Learning to Be Heard, GPSolo Magazine (Apr.-May 2006).
    View/hide the summary. View the full article.

    Summary

    Ms. Howard argues that “good listening” is achieved through the strengthening of interpersonal skills. She emphasizes that lawyers need to focus on what makes each client unique, no matter how many similar cases he or she may have heard over the course of their career. Good listening, Ms. Howard posits, happens when a person is tuned into his or her own feelings and circumstances. This attunement better allows a lawyer to understand how he or she responds to clients. Ms. Howard also argues that for lawyers in particular, it is important that good listening is supplemented with clear communication, including confirmation that the lawyer’s and client’s understanding of the communication is the same. Clear communication requires a lawyer to pay attention to verbal and nonverbal cues, and helps ensure that the client is being treated with professional care as well as sensitivity.
    View/hide the summary. View the full article.

  47. Steve Leben, An Expectation of Empathy, Washburn L.J., Fall 2011, at 49, 50, 53, available at http://contentdm.washburnlaw.edu/utils/getfile/collection/wlj/id/5910/filename/5911.pdf

  48. Steve Leben, Good Judging Often Starts with Good Listening, Procedural Fairness for Judges and Court Blog (May 26, 2012), http://proceduralfairnessblog.org/2012/05/26/good-judging-often-starts-with-good-listening/

  49. Mike Moore, 4 Unusual Listening Tricks for Lawyers, Legal Productivity Practice Management Blog (July 23, 2012), available at http://www.legalproductivity.com/practice-management/a-lawyers-recipe-for-better-listening/

  50. Julian Treasure, 5 Ways to Listen Better, Ted Talk (July 2011) http://www.ted.com/talks/julian_treasure_5_ways_to_listen_better

  51. Additional resources

    Douglas Stone, Bruce Patton, & Sheila Heen, Difficult Conversations: How To Discuss What Matters Most (2d ed. 2010), available at http://books.google.com/books?id=D5HxtvaRzdwC&printsec=frontcover&source=gbs_ge_summary_r&cad=0#v=onepage&q&f=false.

  52. Abstracts of Relevant Washington Rules of Professional Conduct

    Preamble and Scope
    View/hide the summary. View the full rule.

    Summary

    [1] [Washington revision] A lawyer, as a member of the legal profession, is a representative of clients, an officer of the court and a public citizen having special responsibility for the quality of justice.

    View/hide the summary. View the full rule.

    Rule 1.1 Competence
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    Summary

    A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

    View/hide the summary. View the full rule.

    Rule 1.2 Scope of Representation & Allocation of Authority Between Client & Lawyer
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    Summary

    Rule 1.2(a) A lawyer shall abide by a client's decisions concerning the objectives of representation … and shall consult with the client as to the means by which they are to be pursued …

    Rule 1.2(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

    Comment, Criminal, Fraudulent and Prohibited Transactions, [13] If a lawyer comes to know or reasonably should know that a client expects assistance not permitted by the Rules of Professional Conduct or other law or if the lawyer intends to act contrary to the client's instructions, the lawyer must consult with the client regarding the limitations on the lawyer's conduct. See Rule 1.4(a)(5).

    View/hide the summary. View the full rule.

    Rule 1.3 Diligence: A lawyer shall act with reasonable diligence and promptness in representing a client.
    View/hide the summary. View the full rule.

    Summary

    Rule 1.3, Comment, Client-Lawyer Relationship:

    [1] “A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf. A lawyer is not bound, however, to press for every advantage that might be realized for a client. For example, a lawyer may have authority to exercise professional discretion in determining the means by which a matter should be pursued…The lawyer's duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.”

    Comment [3]: “A lawyer's duty to act with reasonable promptness, however, does not preclude the lawyer from agreeing to a reasonable request for a postponement that will not prejudice the lawyer's client.”

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    Rule 1.4: Communications
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    Summary

    Section (4) of this rule requires a lawyer to “promptly comply with reasonable requests for information.”

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    Rule 3.4: Fairness To Opposing Party And Counsel
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    Summary

    A lawyer shall not:

    (a) unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;

    (b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;

    (c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists;

    (d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party; or

    (e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused.

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    Rule 4.4: Respect for Rights of Third Persons
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    Summary

    Rule 4.4(a) states that a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.

    Rule 4.4(b) states that a lawyer who receives a document relating to the representation of the lawyer's client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.

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    Rule 8.4: Misconduct: Maintaining The Integrity Of The Profession
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    Summary

    Contains broad provisions covering misconduct—including dishonesty, fraud, deceit or misrepresentation—and, as stated in Rule 8.4(d), conduct “that is prejudicial to the administration of justice.”

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    VII. WSBA Code of Professionalism

    Washington State Bar Association Creed of Professionalism-adopted by the WSBA Board of Governors July 2001
    http://www.wsba.org/~/media/Files/Legal%20Community/Committees_Boards_Panels/Professionalism%20Committee/Creed%20of%20Professionalism.ashx (last visited 2/7/14)