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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

Italy CLE Readings

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    Day 1: Defining Civility

    1. Defining civility

  1. Justice Steven González, True Civility Requires More Than Being Polite, Washington State Bar Ass’n (Sept. 2012),
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    Summary

    Justice González states that “[c]ivility is a way of connecting and interacting with people; of engaging and thinking about what our relationships are with one another, and of discerning what we care about. . . . It is about how we communicate and how we persuade and convince, because that’s often what we’re doing in our profession. If we’ve alienated people from the outset, it can be much harder to do that and to be effective.”

    He underscores the idea that effectively practicing civility in the legal profession requires nuance. He makes an important distinction between what he calls “true civility” and “false civility,” arguing that true civility depends on “the context, cultural factors, and on so many other things that there cannot be one rigid definition of civility.” Apparent politeness alone, he contends, does not necessarily indicate respect. For example, using polite words with a patronizing or insincere tone is not civil. “It is the substance that brings dignity and true civility to our courts and to our system. As we consider who benefits from protocol, I’d like to also suggest that it’s usually those in power who benefit from formality and protocol, because that respects us and preserves our position.” But he also notes that there are times when people who are disenfranchised from the organization find solace in formality. Again, it depends on the context.

    Elaborating on the nuance of true civility, Justice González notes that the formality of court procedure can be alienating to pro se litigants, who are often under great stress in an unfamiliar environment. “If you are the lawyer opposing a pro se party, it means speaking in plain language and . . . bringing controlling authority to the court’s attention, even if it does not support your case, and not taking advantage of the pro se party using legalese and a rigid adherence to procedure.” This true civility, Justice González argues, is not only fair to all parties involved and in the interests of justice, but also has professional benefits for the advocate: it enhances a lawyer’s reputation “as a true officer of the court.”

    Justice González concludes with a practice point that shows how important civility is in every phase. Discussing preparing clients for the rigors of deposition, he points pervasive that “if they lose their civility and their composure that can wash away all the good preparation that you’ve done on the substance.” Thus, “[c]ivility permeates every single part of the practice of law.”

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  2. 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.

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  3. 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.”


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  4. 2 Karen K. Koehler & Michael D. Freeman, LITIGATING MAJOR AUTOMOBILE INJURY AND DEATH CASES, ch. 23 (2013-2014 ed.).
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    Summary

    Ms. Koehler and Mr. Freeman state that lawyers “should strive at all times to uphold the honor and dignity of the legal system.” They suggest that in court, lawyers can fulfill their primary duty to advocate on behalf of their clients and, at the same time, should remain civil and courteous, to “retain the respect and confidence of their colleagues and the public,” including jurors. They go on to outline some “borderline” uncivil behaviors to avoid, such as interruptions, shuffling papers, whispering, and “snorts, sighs and snickers.”
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  5. 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.

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  6. Mary H. Mocine, Realizing Kindness, Guest Column: Transforming Practices.
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    Summary

    Ms. Mocine, a Buddhist priest and lawyer, suggests that being kind is an act of courage.  She discusses the difficulty of operating in a civil manner within the adversarial legal system.  She advocates using “radical kindness”.  “Radical kindness includes being fierce when that is appropriate. It includes setting boundaries. It includes being flexible, thinking outside the box of our assumptions.”  Radical kindness requires us to

    • remember our shared humanity and act with compassion;
    • be assertive without being unkind by calmly setting boundaries and letting people know how we feel in uncivil interactions;
    • let go of our assumptions and take a new look at a challenging situation; and
    • retain our personal values and act in a manner consistent with them.

    She elucidates these points with specific examples from practice and law school.

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  7. Sims Weymuller, Professionalism: One Lawyer’s View, WASHINGTON STATE BAR NEWS (Aug. 2011)
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    Summary

    Mr. Weymuller posits that each lawyer will practice professionalism from his or her own unique perspective and that the core concepts of professionalism can act as a useful guide for those navigating the profession. Professionalism for Mr. Weymuller includes three main ideas—competence, civility, and community. Lawyers, he argues, must be competent in order to fulfill the promises they have made to the public as justice-keepers and -seekers. Secondly, according to Mr. Weymuller, civility resists concrete definition and practice, but certainly includes humility, grace, and courteousness. When practiced, he argues, civility always benefits any project that a lawyer is involved with. Lastly, Mr. Weymuller argues that community within the legal profession is best cultivated when diversity is present. Importantly for Mr. Weymuller, diversity allows lawyers to strengthen their ability to empathize, which is crucial to providing the most accessible and effective services for all clients.

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  8. Day 2: Introducing civility; why civility matters; foundations of civility

    2.1. Introducing civility in the profession

  9. A.B.A House of Delegates, Resolution 108 (Aug. 2011)
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    Summary

    On August 8–9, 2011, the American Bar Association House of Delegates adopted a resolution to urge lawyers to “set a high standard for civil discourse”; to urge Bar Associations to promote “a more civil” discourse; to urge “all government officials and employees, political parties, the media, advocacy organizations, and candidates for political office and their supporters, to strive toward a more civil public discourse”; and to support “governmental policies, practices, and procedures that promote civility and civil discourse.”

    The report filed in support of this resolution states that

     [l]awyers play many roles in modern society. We serve as advocates for clients, as members of our community boards, and as judges sworn to uphold the rule of law. We are career public servants and elected officials, political advisors and media experts. We are even journalists, business leaders, and sports figures. In all these walks of life and more, lawyers are leaders in our society. This gives us a unique opportunity, and obligation, to make important contributions at important times.

    Now is such a time. Contemporary political discourse continues to spiral to unprecedented levels of acrimony and venom, thereby endangering not only the quality of decision making about important public issues, but also the very lives and safety of public servants and citizens. A true and free democratic society cannot long endure in such a toxic environment. It is time for lawyers as leaders in our society, and the ABA as the leader of leaders, to stand and take action.

    ***

    Public discourse lies at the heart of American democracy. People can and will have different views on matters of public concern, and it is the engagement of that diversity that is the political process. Effective engagement is constructive in nature. It fosters greater understanding, public involvement, respect despite differences, and a sense of community. It leads to solutions that are responsive to citizen needs and fosters an environment of social trust. Increasingly today, this is called “civil public discourse,” a means of civic engagement that encourages people of all political persuasions to vigorously but responsibly debate the choices that face our communities and our country today. Key elements of civil public discourse include dialogue, respectful communication and informed public decision-making.

    This resolution seeks to address the “current state of our political discourse that has spiraled to unprecedented levels of acrimony and venom, thereby endangering not only the quality of decision making about important public issues, but also the very lives and safety of public servants and citizens.” Because “[l]awyers are leaders throughout our society …[we] have a unique capacity to influence the character of public discourse through our own actions and the advice we give our clients and others who seek it.” 

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  10. Barrie Althoff, Ethics and the Law: The Ethics of Incivility, Washington State Bar Ass’n (1999)
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    Summary

    Former WSBA Chief Disciplinary Counsel, Mr. Barrie Althoff states that “civility 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.” After reviewing concerns over incivility in the profession and its causes, including some clients’ expectations of uncivil behavior, he discusses Rules of Professional Conduct that relate to civility. Mr. Althoff also provides several examples of lawyers’ behavior that resulted in disciplinary action or court sanctions. He concludes with a series of provocative questions including who should set standards of behavior, who should police and regulate said behavior, and whether such codes of conduct are effective ways to ensure justice is done. The legal profession “is a noble profession … because the profession's overriding goal is to make the promise of justice a reality…. If lawyers truly are guardians of law, then they more than others need to embody in their practices and lives … respect for the dignity of the individual. Lawyers need to treat one another with dignity and respect because the very purpose of law, and thus the very reason for the legal profession's existence, is to attain respect and protection for the dignity of the individual. Modeling civility and professionalism is an important way for each lawyer and judge to express gratitude to other legal professionals, to honor the innate dignity of one another, and to celebrate the cacophony of justice that is attained through the legal process.”

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  11. Warren E. Burger, The Necessity For Civility, 52 F.R.D. 211 (1971).
    View the full article.

  12. 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.

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  13. 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.
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  14. Melissa S. Hung, Comment, A Non-Trivial Pursuit: The California Attorney Guidelines of Civility and Professionalism, 48 SANTA CLARA L. REV. 1127 (2008)
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    Summary

    After discussing the decline of civility in the profession and identifying the commonly cited causes, Ms. Hung explains the history, framework, philosophy, and implementation of the 2008 California Attorney Guidelines of Civility and Professionalism. She also provides a copy of the Guidelines in an appendix.

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  15. 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.

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  16. 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.”

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  17. Selected Civility Codes

    Washington State Bar Association Creed of Professionalism-adopted by the WSBA Board of Governors July 2001
    View the full article.

    David C. Hoffman, Fifty Resolutions in Regard to Professional Deportment – written in 1836
    View the full article.

    American Bar Association, Center for Professional Responsibility, Professionalism Codes, View the full article.

    2.2 Why Civility Matters

  18. Paula Lustbader, Lecture Notes on Civility in the Legal Profession, ROBERT’S FUND (2012)
    View the full article.

  19. Anthony Eaton and Garrison Mandel, Occupations and the prevalence of major depressive disorder, 32(11) Journal of Occupational Medicine 1079 (1990)
    View the full article.

  20. Somjen M. Frazer, Defendant Perceptions of Fairness at the Red Hook Community Justice Center (from The Impact of Community Court Model on Defendant Perceptions of Fairness, Center for Court Innovation, Sept. 2006), last visited Apr. 18, 2014
    View the full article.

  21. Chenise S. Kanemoto, Bushido in the Courtroom: A case for virtue-oriented lawyering, 57 S.C.L. Rev. 357 (2005)
    View the full article.

  22. Christine Pearson & Christine Porath, Success! How Five Organizations Have Set the Course, THE COST OF BAD BEHAVIOR: HOW INCIVILITY IS DAMAGING YOUR BUSINESS AND WHAT TO DO ABOUT IT 134-137 (2009).

  23. Christine Porath & Christine Pearson, The Price of Incivility: Lack of respect hurts morale – and the bottom line, January-February 2013 Harvard Bus. Rev. 115 (2013)
    View the full article.

  24. P.M. Forni, The Other Side of Civility, John’s Hopkins Univ. Dr. Forni’s Civility Website.
    View the full article.

  25. 2.3 Foundations of Civility

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

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    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.

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  27. Stella Rabaut, Civility: Power Beyond Politeness, 66 Wash. Bar News 2.
    View the full article.

  28. 2.4 Consciousness

  29. 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.

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  30. Leslie A. Gordon, Law Prof Teaches Meditation Techniques for Lawyers, A.B.A. J. (Feb. 1, 2014)
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    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.”

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

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    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.

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  32. Robert Zeglovitch, The Mindful Lawyer, GPSolo Magazine (Oct.-Nov. 2006).
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    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.

  33. 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).

    Larry Richard, The Psychologically Savvy Leader, What Makes Lawyers Tick Blog, (November 14, 2013), http://www.lawyerbrainblog.com/.

    Leonard L. Riskin, The Place of Mindfulness in Healing and the Law, in SHIFTING THE FIELD OF LAW & JUSTICE, 99-120, Center for Law and Renewal (Linda Hager, Bonnie Allen & Renee Floyd Meyers, eds) (2007).

    2.5 Creativity

  34. Steven Keeva, Lose the Box (Sept. 12, 2004, 11:46 AM CST), A.B.A. J.
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    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.

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  35. 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)
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    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.

  36. 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.

  37. 2.6 Community

  38. 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.

  39. 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.

  40. 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.

  41. 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.

  42. Additional resources

  43. Russell G. Pearce, The Lawyer and Public Service, 9 AM. U. J. GENDER SOC. POL’Y & L. 1, available at http://digitalcommons.wcl.american.edu/jgspl/vol9/iss1/17/.

  44. Day Three: Precursors and costs of incivility; benefits of civility

    3.1 Precursors to incivility

  45. Levi Pulkkinen, Supreme Court Throws Out Seattle Murder Conviction, Finds Prosecutor Played On Race, SEATTLE P.I., Jun. 9, 2011.
    View the full article.

  46. Steven G. Toole, Taking the High Road, Acting Appropriately: PROfessionalism, 65 Wash. Bar News 8, (Aug. 2011).
    View the full article (last visited Oct. 2015). 

  47. Lawrence J. Vilardo &Vincent Doyle III, Where Did the Zeal Go?, 38 Litig. 53 (Fall 2011)
    View/hide the summary. View the full article.

    Summary

    Messrs. Vilardo and Doyle summarize the competing views of a lawyer’s duty to their client at all costs versus a lawyer’s duty to the legal system and the common good. They begin with a brief and interesting historical note outlining the origin of these views. In 1820, Lord Henry Brougham first introduced the concept of zealous advocacy in a trial in the House of Lords, when he stated that the lawyer owed a “sacred duty” to his “client and none other. To save that client by all expedient means – to protect that client at all hazards and costs to all others, and among others to himself – is the highest and most unquestioned of his duties; and he must not regard the alarm – the suffering – the torment – the destruction – which he may bring upon any other.” A lawyer’s duty requires the interests of the client be put “above those of even his country.”

    In 1836, Professor David Hoffman, a Baltimore lawyer, published Fifty Resolutions in Regard to Professional Deportment, considered the first American code of legal ethics. In this book, Professor Hoffman introduced the concept that lawyers’ duty to their clients did not override lawyers’ duty to their own consciences. He stated, “What is morally wrong cannot be professionally right….I will never permit professional zeal to carry me beyond the limits of sobriety and decorum.” 

    There is a “fundamental paradigm shift” in the legal profession as lawyers are moving away from representing their clients at any cost and are moving “toward the position that they have a duty to the ‘truth’ or the ‘system.’” In 1908, in its Canons of Professional Ethics, the American Bar Association stated that “a lawyer owes entire devotion to the interest of the client, warm zeal in the maintenance and defense of his rights.…” The 1969 ABA Model Code of Professional Responsibility provided that a lawyer’s duty was to represent the client interest “zealously within the bounds of the law.” The 1983 ABA revised Model Rules of Professional Conduct eliminated the word “zealous” from its rules, although it was included as a descriptive term in the preamble and commentary. In addition to these codes’ reframing of zealous advocacy, Messrs. Vilardo and Doyle identify other areas where the lawyer’s duty to the client is compromised in favor of a lawyer’s duty to the “truth” or common good. For example, rules regarding maintaining client confidentiality have changed from an absolute prohibition from disclosure, to situations where a lawyer may disclose and even circumstances when a lawyer must disclose – e.g., in some cases involving a client’s fraudulent conduct before a tribunal, a lawyer “must take remedial measures, including breaking the confidence, if necessary.”

    Messrs. Vilardo and Doyle explain that when lawyers act as counselors, the client expects advice that includes consideration of the interests of others, not just the client’s. However, the authors argue that when lawyers act as advocates and when they “put their duty to the ‘system’ before their duty to their clients, the adversary system falls apart.” The system relies on two advocates to present the interest of their clients. The lawyer is not the judge of the client’s case; rather, the lawyer is “charged with the responsibility of speaking for clients who cannot speak for themselves and representing the interests of those clients with all the skill and passion we would use if those interests were our own.” He concludes that the adversary system requires lawyers to be “devoted to pursue not the greater good, not what is best for the ‘system,’ not even ‘justice,’ but rather only the client’s cause.”

    View/hide the summary. View the full article.

  48. Ron Ward, Pit Bulls, Pikes, and Pitchforks: Rendering the Service of Practicing Professionalism, WSBA, (Feb. 2005).
    View the full article (last visited Oct. 2015).

  49. Abstracts of Selected ABA Model Rules of Profession Conduct

    Rule 1.1: Competence
    View/hide the abstract. View the full rule.

    Abstract

    When representing a client, a lawyer must act competently, with the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

    View/hide the abstract. View the full rule.

    Rule 1.2: Scope of Representation & Allocation of Authority Between Client & Lawyer
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    Abstract

    Rule 1.2(a) states that a lawyer shall abide by a client's decision whether to settle a matter.

    Rule 1.2(d) states that a lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent.

    View/hide the abstract. View the full rule.

    Rule 1.3 Diligence
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    Abstract

    A lawyer must act with reasonable diligence and promptness in representing a client.

    1.3, comment 1 states that the lawyer should act with dedication and commitment to the client’s interests and with zeal in advocacy on the client’s behalf. However, comment 1 further notes that “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.”

    View/hide the abstract. View the full rule.

    Rule 1.4 Communications
    View/hide the abstract. View the full rule.

    Abstract

    Rule 1.4(a) states that a lawyer must promptly inform the client of any decision or circumstance that requires the client’s informed consent.

    View/hide the abstract. View the full rule.

    Rule 1.6 Confidentiality of Information
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    Abstract

    Rule 1.6(a)(1) When a lawyer discovers that her client expects assistance that violates a law, the lawyer must explain why she cannot do what the client expects. If the client insists on the lawyer’s assistance in violating the law or ethics rule, the lawyer must withdraw.

    View/hide the abstract. View the full rule.

    Rule 3.3 Candor Toward the Tribunal
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    Abstract

    Rule 3.3(a)(3) states that an attorney must not knowingly “offer evidence that [he] knows to be false,” whether the evidence comes from the client or from a witness called by the lawyer.

    View/hide the abstract. View the full rule.

    Rule 4.4: Respect for Rights of Third Persons
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    Abstract

    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 or electronically stored information relating to the representation of the lawyer's client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender.

    View/hide the abstract. View the full rule.

    Rule 8.4 Misconduct
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    Abstract

    8.4(a) It is professional misconduct for a lawyer to (i) violate or attempt to violate any of the Rules of Professional Conduct, (ii) knowingly assist or induce another person to violate the Rules, or (iii) use the acts of another person to commit a violation.

    8.4(b) A lawyer is subject to discipline for committing a criminal act that reflects adversely on his honesty, trustworthiness, or fitness as a lawyer in other respects.

    8.4 (c) Any conduct involving dishonestly, fraud, deceit, or misrepresentation constitutes professional misconduct.

    8.4(d) A lawyer is subject to discipline for engaging in conduct that is prejudicial to the administration of justice.

    8.4, comment 3 states that a lawyer shall not knowingly manifest, by words or conduct, bias or prejudice based on race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status, and such action is prejudicial to the administration of justice.

    View/hide the abstract. View the full rule.

  50. Abstracts of Selected WSBA Model Rules of Profession Conduct and Sample Codes of Civility

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

    Abstract

    [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 abstract. View the full rule.

    Rule 1.1 Competence
    View/hide the abstract. View the full rule.

    Abstract

    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 abstract. View the full rule.

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

    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 abstract. View the full rule.

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

    Abstract

    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.”

    View/hide the abstract. View the full rule.

    Rule 1.4: Communications
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    Abstract

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

    View/hide the abstract. View the full rule.

    Rule 3.4: Fairness To Opposing Party And Counsel
    View/hide the abstract. View the full rule.

    Abstract

    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.

    View/hide the abstract. View the full rule.

    Rule 4.4: Respect for Rights of Third Persons
    View/hide the abstract. View the full rule.

    Abstract

    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.

    View/hide the abstract. View the full rule.

    Rule 8.4: Misconduct: Maintaining The Integrity Of The Profession
    View/hide the abstract. View the full rule.

    Abstract

    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.”

    View/hide the abstract. View the full rule.

  51. Additional Resources

    Gerald Hardcastle, Civility in the Courtroom: A Judge’s Perspective, 17 NEV. LAW. 6 (2009).
    View the full article (last visited Oct. 2015). 

    Joseph J. Ortego & Lindsay Maleson, Incivility: An Insult to the Professional and the Profession, A.B.A Practice Essentials Articles (Spring 2008). Last visited May 25, 2014. View the full article.

    3.1.B: General psychological distress

  52. Connie J.A. Beck, Bruce D. Sales, & G. Andrew H. Benjamin, Alcohol-Related Problems and Other Psychological Concerns among a Sample of Practicing Lawyers, 10 J.L. & Health 1, (1995-1996), View the full article.

  53. Dan Crystal, The Unbar: Attorneys Come Together to Take on Alcoholism, 66 Wash. Bar News 9, (Sept. 2012). View the full article.

  54. Rosa Flores & Rose Marie Arce, Why Are Lawyers Killing Themselves?, CNN (January 20, 2014, 2:42 PM EST), (last visited May 25, 2014). View the full article.

  55. Tyger Latham, The Depressed Lawyer: Why are so many lawyers so unhappy?, PSYCHOLOGY TODAY, May 2, 2011. View the full article.

  56. 3.1.C: Impact of vicarious trauma

  57. 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),
    View/hide the summary. View the full article.

    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.

     

  58. 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)
    View/hide the summary. View the full article.

    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.

  59. 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
    View/hide the summary. View the full article (last visited Oct. 2015).

    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.”

    View/hide the summary. View the full article.

     

  60. Isaiah M. Zimmerman, Helping Judges In Distress, Judicature, July-Aug. 2006, at 10, 10-13, 15
    View/hide the summary. View the full article.

    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.

  61. Marjorie A. Silver, Sanford Portnoy, & Jean Koh Peters, Stress, Burnout, Vicarious Trauma, and Other Emotional Realities in the Lawyer/Client Relationship (Symposium: Lawyering and Its Discontents: Reclaiming Meaning in the Practice of Law), 19 TOURO L. REV. 847 (2004)
    View the full article.

  62. Lila Petar Vrklevski & John Franklin, Vicarious trauma: The impact on solicitors of exposure to traumatic material, 14 TRAUMATOLOGY, 106-118 (2008)
    View the full article.

  63. Andrew P. Levin & Scott Greisberg, Vicarious trauma in attorneys, 24 PACE L. REV. 245 (2003)
    View the full article.

  64. Andrew P. Levin, Linda Albert, Avi Besser, Deborah Smith, Alex Zelenski, Stacey Rosenkranz &Yuval Neria, Secondary Traumatic Stress in Attorneys and Their Administrative Support Staff Working With Trauma-Exposed Clients, 199 J. OF NERVOUS & MENTAL DISEASE 12, 946 (Dec. 2011)
    View the full article (last visited Oct. 2015).

  65. Additional resources

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

  67. 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.

  68. 3.1 Benefits of civility

    3.1.A: Civility benefits the practice

  69. Alina Tugend, Incivility Can Have Costs Beyond Hurt Feelings, NY TIMES, Nov. 10, 2010, (last visited Aug. 7, 2012).
    View the full article (last visited Oct. 2015).

  70. Chaim Steinberger, Make More Money by Being More Ethical, 33 FAM. ADVOC. 12 (2010-2011).
    View the full article (last visited Oct. 2015). 

  71. Mark G. Honeywell, Civility Is Good Business, 66 Wash. Bar News 6 (June 2011)
    View the full article.

  72. Nicole Jacoby, Etiquette Crisis At Work: Employees Say They’ve Had Enough of Incivility, Bad Manners, CNN Money (Nov. 29, 1999,6:39 AM ET), (last visited May 25, 2014).
    View the full article.

  73. Steven Keeva, What Clients Want, 87 A.B.A. J. 48 (Jun. 2001).

  74. 3.2.B Civility benefits the administration of justice

  75. John J. Jurcyk Jr., Honor the Law! The Essential Role of Civility in the Legal System, 77 J. KAN. B.A. 22 (Oct. 2008).

  76. Ron Ward, Civility: The Preservation of Access to Justice, 66 Wash. Bar News 3, (Mar. 2011), (last visited Aug. 7, 2012).
    View the full article.

  77. 3.3 The Italian Legal System

  78. Antonio Mondini, The Italian Court System (A White Paper for The Civility Promise Seminar in Italy), Fall 2013
    View the full article.

  79. Marcello Marinari, The Italian Court System (A White Paper for The Civility Promise Seminar in Italy), Fall 2013
    View the full article.


  80. Day 4: Civility Excursion

  81. Am. Asso’n of Prof’l Psychics, History of the Tarot, (last visited May 25, 2014).
    View the full article (last visited Oct. 2015).

  82. Brief Biography of Niki de Saint Phalle, Art Directory, (last visited May 25, 2014).
    View the full article.


  83. Day 5: Personal strategies to foster civility

    5.1 The science of consciousness, creativity, and community

  84. Joe Marshall, Maintaining Professionalism Relationships: A View from the Court from Judge Laura Inveen, 65 Wash.Bar News 8, (Aug. 2011)
    View the full article.

  85. Carrie Menkel-Meadow, Aha--Is Creativity Possible in Problem Solving and Teachable in Legal Education, 6 HARV. NEGOT. L. REV. 97 (2001)
    View the full article.

  86. Carrie Menkel-Meadow, Lawyer as Problem Solver and Third-Party Neutral: Creativity and Nonpartisanship in Lawyering, 72 TEMP. L. REV. 785 (1999).
    View the full article.

  87. Stella Rabaut, A Mindful Practice Is A Sustainable Practice, The Complete Lawyer: Legal News & Articles For Everyone (Dec. 2008), (last visited May 25, 2014).
    View the full article.

  88. A.B.A., Staying Connected to Friends and Family, Not Necessarily Your PDA, Helps Keep Stress at Bay, (last visited Aug. 7, 2012).
    View the full article.

  89. Additional resources

  90. Lawrence Krieger & Kennon Sheldon, What Makes Lawyers Happy? Transcending the Anecdotes with Data from 6200 Lawyers, 83 GEO. WASH. L. REV. (forthcoming 2015).
    View the full article.

  91. Carolyn Gregoire, The Harvard Grant Study, The 75-Year Study That Found The Secrets To A Fulfilling Life, Huffington Post (Aug. 23, 2013, 5:55 PM EDT), (last visited May 25, 2014).
    View the full article.

  92. Magee V. Rhonda, EDUCATING LAWYERS to Meditate? From Exercises to Epistemology to Ethics: The Contemplative Practice in Law Movement as Legal Education Reform (Aug. 2010), (last visited May 25, 2014).
    View the full article.

  93. 5.2 Tools for conscious lawyering

  94. Carolyn B. Lamm, Solving the Work Life Equation ABA President’s Message, A.B.A. J. (June 2010)
    View the full article.

  95. Cynthia L. Alexander & G. Andrew H. Benjamin, Civility Is Good for Your Health, 66 Wash. Bar News 4, (Apr. 2011)
    View the full article.

  96. Rebecca Nerison, Lawyers: Find Freedom From Anger, Anxiety and Stress, (2010)
    View the full article.

  97. G. Andrew H. Benjamin, Reclaim Your Practice, Reclaim Your Life, TRIAL. 30 (2008)
    View the full article (last visited Oct. 2015).

  98. 5.3. Implicit bias and cross-cultural competence

  99. Lera Boroditsky, Lost in Translation, The Wall Street Journal, July 23, 2010
    View/hide the summary. View the full article.

    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.”
    View/hide the summary. View the full article.

  100. Roger O. Crockett, Listening is Critical in Today’s Multicultural Landscape, Harv. Bus. Rev. Blog Network (Mar. 14, 2011, 2:15 PM)
    View/hide the summary. View the full article.

    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.

  101. Jerry Kang et al., Implicit Bias in the Courtroom, 59 UCLA L. REV. 1124 (2012)
    View/hide the summary. View the full article.

    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.

     

  102. 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, international arbitrator David Kreider 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.

  103. Arin N. Reeves, Yellow Paper Series: Written in Black & White – Exploring Confirmation Bias in Racialized Perceptions of Writing Skills, Nextions Original Research (Apr. 2014
    View the full article (last visited Oct. 2015).

  104. 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.

  105. 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.

  106. Additional resources

  107. 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.

  108. 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).

  109. 5.4 The Italian Legal System

  110. Antonio Mondini, The Italian Court System (A White Paper for The Civility Promise Seminar in Italy), Fall 2013
    View the full article.

  111. Marcello Marinari, The Italian Court System (A White Paper for The Civility Promise Seminar in Italy), Fall 2013
    View the full article.


  112. Day 6: Interpersonal strategies to foster civility

    6.1 Impact of bias on interpersonal relationships

  113. Amy Timmer and Nelson Miller, REFLECTIONS OF A LAWYER’S SOUL: The Institutional Experience Of Professionalism At Thomas M. Cooley Law School (William S. Hein & Co., Inc. 2008)
    View the full article (last visited Oct. 2015).

  114. Myth of Equal Justice Examined by ABA Panelists, A.B.A.
    View the full article.

  115. Steve Miletich, Two State Supreme Court Justices Stun Some Listeners With Race Comments, Seattle Times (Oct. 21, 2010)
    View the full article.

  116. 6.2 Impact of biases and assumptions about effective advocacy

  117. Andrea Brenneke, Civility and Effectiveness, 66 Wash. Bar News 12, (Dec. 2011)
    View the full article.

  118. Becky Beaupre Gillespie & Hollee Schwartz Temple, Working Together, Living Together, A.B.A.J. (Jun 1, 2010 2:00 AM CDT)
    View the full article.

  119. Elizabeth Fenton & Sandra M. Di Iorio, Maintaining Civility in Litigation, PRACTICAL LITIGATOR (Jan. 2011)
    View the full article.

  120. Ernest Radillo, From the Cotton Fields to the Courtroom, 65 Wash. Bar News 10, (Oct. 2011)
    View the full article.

  121. Jacobius Moshe, Civility & the Family Law Gladiator, 33 FAM. ADVOC. 2 (2010)
    View the full article.

  122. John W. Allen, Lawyers as Healers, 80 MICH. B.J. 42 (Oct. 2001).

  123. Joseph Shaub, Civility In Practice: The Comprehensive Law Movement as a Natural Response, 66 Wash. Bar News 7, (July 2011)
    View the full article.

  124. Mark Perlmutter, Practicing Law—And Keeping Your Humanity, 88 A.B.A. J. 58 (2002)
    View the full article (last visited Oct. 2015).

  125. Research Working Group of the Task Force On Race And Criminal Justice, Implicit Bias Distort Decision Makers Throughout The Criminal Justice System, Preliminary Report (2011).
    View the full article (last visited Oct. 2015).

  126. 6.3 The civility of listening

  127. 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).
    View/hide the summary. View the full article.

    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.

     

  128. 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.

  129. Steve Leben, Good Judging Often Starts with Good Listening, Procedural Fairness for Judges and Court Blog (May 26, 2012).
    View/hide the summary. View the full article.

    Summary

    In his blog, after noting the general lack of listening training for judges, Judge Steve Leben states that he and Judge Kevin Burke encourage judges to take a listening-skills assessment test either from Human Resources Development Quarterly (HRDQ) or Psychology Today. He summarizes the HRDQ listening method as follows:

    • “Staying Focused: Sometimes we’re our own worst enemy when it comes to listening-we have lots of other things on our mind. The careful listener prepares to give the speaker full attention, monitors whether attention strays, and corrects the situation if it does.
    • Capturing the Message: We need to be open-minded to capture the message the speaker is trying to send rather than our preconceived notion of what is being said. This can be especially true for judges who hear (or think they hear) the same stories day after day. Offering a summary of what you’ve heard so that the speaker can confirm you’ve got it right can help.
    • Helping the Speaker: Not every speaker can handle a judge’s interruptions or distracting verbal comments. If you’re really trying to listen to what the speaker wants you to hear, you’ll be willing to make the environment conducive for good communication.”

    View/hide the summary. View the full article.

     

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

  131. Mike Moore, 4 Unusual Listening Tricks for Lawyers, Legal Productivity Practice Management Blog (July 23, 2012).
    View/hide the summary. View the full article.

    Summary

    In this blog post, Mr. Moore offers four tips on how lawyers can listen more effectively. First, he urges lawyers to stay quiet while listening to a colleague or client. Next, he suggests lawyers stay focused on what words are being said, rather than attempting to “think ahead” or predict what the person is going to say next. . Third, Mr. Moore suggests lawyers wait until the speaker confirms that he or she has completed his or her thought. This technique allows the speaker to feel more at ease, if he or she is nervous or uncomfortable. Last, Mr. Moore suggests lawyers explain the speaker’s point back to him or her. This is a practical technique that is effective when confirming understanding of complicated concepts. “Evidencing receipt of the speaker’s point or perspective can be an implied statement of respect and consideration.”
    View/hide the summary. View the full article.

  132. Joseph Shaub, Dealing with the Most Difficult Clients, High Conflict Personalities-Understanding and Resolving Their Costly Disputes, Wash. Bar News (May 2005).
    View the full article.

  133. Julian Treasure, 5 Ways to Listen Better, Ted Talk (July 2011).
    View/hide the summary. View the full article.

    Summary

    Julian Treasure, a leading expert on sound and how to use it best, states that “listening is our access to understanding. Conscious listening always creates understanding.” We listen through filters of our culture, language, values, beliefs, attitudes, expectations, and intentions. To be a better listener, he suggests we listen with an awareness of our filters and adjust them to fit the context and to what we are listening.

    Five ways to listen better:

    1. Be silent. Spend three minutes a day in silence. This “is a wonderful exercise to reset your ears and to recalibrate so that you can hear the quiet again.”
    2. Hear. Listen to the individual sounds that contribute to the mix of sounds in a noisy place. Ask yourself “how many channels of sound can I hear? How many individual channels in that mix am I listening to? You can do it in a beautiful place as well, like in a lake. How many birds am I hearing? Where are they? Where are those ripples? It's a great exercise for improving the quality of your listening.”
    3. Savor. Find the joy in mundane sounds; they can be really interesting. For example, listen to the rhythm of the dryer or coffee grinder. He calls the mundane sounds “the hidden choir. It's around us all the time.”
    4. Adjust. Change “your listening position to what's appropriate to what you're listening to.” Be conscious of the filters (culture, language, values, beliefs, attitudes, expectations and intentions) through which you are listening and make adjustments.
    5. RASA. “Receive, which means pay attention to the person; Appreciate, making little noises like "hmm," "oh," "okay"; Summarize, the word "so" is very important in communication; and Ask, ask questions afterward.”

     

    “I believe that every human being needs to listen consciously in order to live fully — connected in space and in time to the physical world around us, connected in understanding to each other, not to mention spiritually connected, because every spiritual path I know of has listening and contemplation at its heart.”

    He envisions “transform[ing] the world in one generation to a conscious listening world — a world of connection, a world of understanding and a world of peace.”
    View/hide the summary. View the full article.

  134. 6.4. Empathy and compassion

  135. Karen Armstrong, My wish: The charter for Compassion, Ted Talk (Feb. 2008).
    View the full article.

  136. Karen Armstrong, Let’s revive the Golden Rule, Ted Talk (July 2009)
    View the full article.

  137. Brene Brown, The power of vulnerability, Ted Talk (June 2010).
    View the full article.

  138. Daniel Goleman, What makes a leader? HARV. BUS. REV. (Jan. 2004)
    View the full article (last visited Oct. 2015).

  139. Jeremy Rifkin, RSA Animate-The Empathic Civilisation (May 10, 2010) (YouTube Video)
    View the full article.

  140. Additional resources

  141. Douglas Stone, Bruce Patton, & Sheila Heen, DIFFICULT CONVERSATIONS: HOW TO DISCUSS WHAT MATTERS MOST (2d ed. 2010.
    View the full article.


  142. Day 7: Engaging others with civility

    7.1. Lawyers as leaders

  143. LEADING FROM WITHIN: POETRY THAT SUSTAINS THE COURAGE TO LEAD (Sam M. Intrator & Megan Scribner, eds. Jossey-Bass 2005).
    View the full article.

  144. Bill Torbert & Associates, ACTION INQUIRY: THE SECRET OF TIMELY AND TRANSFORMING LEADERSHIP (Berrett-Koehler 2004)
    View the full article.

  145. Richard Bienecke, Introduction: Leadership for Wicked Problems, 14 THE INNOVATION J.: THE PUBLIC SECTOR INNOVATION J. 1, 1-17 (2009)
    View the full article.

  146. Ben W. Heineman, Jr.. Lawyers as Leaders, 116 YALE L.J. POCKET PART 266 (2007)
    View the full article.

  147. Mahzarin Banaji, Max Bazerman, & Dolly Chugh, How unethical are you? 81 HARV. BUS. REV. (Dec. 2003), at 56, 56.

  148. Frank E. Vandervort, Robbin Pott Gonzales, & Katlheen Coulborn Faller, Legal ethics and high child welfare worker turnover: An unexplored connection, 30 CHILDREN & YOUTH FAMILY SERV. REV. 546, 546-563 (May 2008)
    View the full article.

  149. 7.2. Strategies to lead in a civility movement

  150. Daniel Ballbach, The Changing Legal Profession Calls For Civility, 65 Wash. Bar News 11, (Nov. 2011).
    View the full article.

  151. Fritjof Capra, Life and Leadership: A Systems Approach, Fritjof Capra Website, Executive Summary, Management Seminars.
    View the full article (last visited Oct. 2015).

  152. Jeffrey Schwartz, Pablo Gaito, & Doug Lennick, That’s the Way We (Used To) Do Things Around Here, 62 STRATEGY & BUS. (Spring 2011).
    View the full article.

  153. Robert D. Kraus, Toward Civility in Civil Practice, 16 A.B.A. BUS. L. SECTION 5 (May-June 2007)
    View the full article.

  154. Robert D. Ramsey, The Case for Civility in the Workplace, SUPERVISION (Dec. 2008)
    View the full article.

  155. Steve Lash, Changes Proposed in E-Discovery Rules in Md., The Daily Record (Oct. 23, 2009).
    View the full article.

  156. Art Kleiner, Fearlessness: The Last Organizational Change Strategy, STRATEGY AND BUS., (Sept. 25, 2007)
    View the full article.

  157. Margaret Wheatley, What Is Our Role in Creating Change?, TURN TO ONE ANOTHER, Berrett-Koehler, 2nd ed. 2009)
    View the full article.

  158. Christine Pearson & Christine Porath, Top Ten Things a Firm Should Do To Create A Civil Workplace, THE COST OF BAD BEHAVIOR: HOW INCIVILITY IS DAMAGING YOUR BUSINESS AND WHAT TO DO ABOUT IT 138-152 (2009).

  159. Henri Lipmanowicz & Keith McCandless, THE SURPRISING POWER OF LIBERATING STRUCTURES: SIMPLE RULES TO UNLEASH A CULTURE OF INNOVATION (Liberating Structures Press 2013)
    View the full article.

  160. Peter Block, COMMUNITY: THE STRUCTURE OF BELONGING (Berrett-Koehler Press 2008).
    View the full article.

  161. Michael Quinn Patton, DEVELOPMENTAL EVALUATION: APPLYING COMPLEXITY CONCEPTS TO ENHANCE INNOVATION AND USE (The Guilford Press 2011).
    View the full article.

  162. THE ART OF FOCUSED CONVERSATION: 100 WAYS TO ACCESS GROUP WISDOM IN THE WORKPLACE. CANADIAN INSTITUTE OF CULTURAL AFFAIRS (R. Brian Stanfield, ed., 2000).
    View the full article.

  163. Etienne Wenger, Richard McDermott, & William M. Snyder, CULTIVATING COMMUNITIES OF PRACTICE: A GUIDE TO MANAGING KNOWLEDGE (Harvard Business Press 2002).
    View the full article.

  164. Ralph D. Stacey, The Science Of Complexity: An Alternative Perspective For Strategic Change Processes, 16 STRATEGIC MGMT. J. 6, 477, 477-495 (Sept. 1995).
    View the full article.

  165. Additional resources

    The Appreciative Inquiry Commons at https://appreciativeinquiry.case.edu (last visited Oct. 2015).

    www.openspaceworld.org

    www.liberatingstructures.com

    7.3. Civility Tai Chi

  166. Tai Chi: Discover the Many Possible Health Benefits, Mayo Clinic Website, Healthy Lifestyle, Stress Management
    View the full article.

  167. What is Tai Chi? Atlantic Canada Website
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    Summary

    Tai Chi is associated with the Chinese concept of yin-yang, that there is a “dynamic duality (male/female, active/passive, dark/light, forceful/yielding, etc.) in all things.” It is also associated with Taoism, which “espouses a calm, reflective and mystic view of the world steeped in the beauty and tranquility of nature.” Tai Chi is also associated with Asian healing arts, such as acupuncture, because its practice enhances the circulation of ‘chi’ (vital energy) and promotes meditation, health, posture, and balance.

    Principles of Tai Chi include “being sensitive to and responsive of another person's 'chi' or vital energy…on being able to channel potentially destructive energy (in the form of a kick or a punch) away from one in a manner that will dissipate the energy or send it in a direction where it is no longer a danger.”
    View/hide the summary. View the full article.