I’ve been having a great many telephone conversations recently around the central theme of professionalism. There is a sentiment that the detachment brought on by evolving technology, and accelerated by the pandemic, has led to a deterioration in interpersonal skills. Worse, there are perceptions that this deterioration is eroding professionalism in broad contexts.
There are a great many skills required for good lawyers and great negotiators. It helps to have knowledge. It is critical to be able to write. It is important to be analytical. Thoroughness is likewise a virtue. All of that quickly falls to the wayside if you are unprofessional. The skills will bring results, and the lack of professionalism will likely bring only grief.
In one example, at a recent conference, a group of people was reportedly sitting in the first few chairs next to an aisle. Because that left the inner seats empty, people in the row behind them then had an on obstructed view of the speaker. As the room filled, other attendees came seeking those inner seats. Rather than have those attendees climb over them, the individuals sitting close to the aisle rose and shifted inward. It was simply the polite thing to do. Whether they shifted or not, those inner seats would have been filled.
The attendees had no sooner sat again when one of those who then had the backs of their heads included in the view, out loud, and somewhat loudly uttered “a$%^&s,“ an untoward reference to anatomy (in the plural, the proverbial "A-bomb"). Hint, if you want an obstructed view of the stage/speaker, sit in the front row. Hint number two, calling a group of people “a$%^&s“ for accommodating other attendees is unprofessional. Hint number three, calling fellow attendees at a conference a$%^&s out loud in most contexts is unprofessional. Hint number four, using the word a$%^&s outloud in your professional life is unprofessional. Some, perhaps, will see a recurring theme in this paragraph.
I was, unfortunately, not present for this display. I have ruminated on how I might have reacted, and what the proper reaction would be. At first, I wondered where this young lawyer's mother was. I wondered what kind of environment the lawyer was raised in. I wondered if the lawyer has any mentor to help guide him/her in the challenges of professional interaction. And, I wondered if any of that would matter.
Another instance recounted to me involved a young lawyer and a telephonic dispute with the opposing counsel‘s staff. Reaching a point of frustration in the discussion, this young lawyer allegedly dropped a "well F^&* you" (the proverbial "F-bomb."). There is an untoward and unfortunate bit of humor on the Internet regarding the very few times in history when the use of the F-bomb was appropriate. Let me correct any misconceptions that this attempt at humor may have left. The following is a complete and exhaustive list of the appropriate circumstances in which it is perfectly acceptable to use the F-bomb:
I can relate from experience that it is really a great feeling to graduate from law school. It is phenomenally exciting to pass an examination like the Florida bar exam. It is immensely gratifying to be entrusted with someone’s wealth or well-being and to represent them in a legal proceeding. They are entrusting their very livelihoods to your skill, intellect, cunning, and professionalism. What greater compliment might one ever receive? What are these worth if you lack the professionalism to do so appropriately?
As a young lawyer, I was periodically blissfully ignorant in the cocoon of my practice. I was perhaps too busy to adequately consider how others felt; my empathy likely often fell short. I had many chances to understand lawyers. I thought little, and frankly never considered how judges might be, or how they might think, or perhaps feel.
It was common in those days for lawyers to meet socially, break bread, and enjoy a drink periodically. We spoke of the law, we spoke of those for whom we worked, and we talked about the peculiarities, foibles, and failures of judges. There were many. Some may avoid that admission, but take it from me judges are not perfect. There was admittedly a level of ignorance and arrogance in our youthful criticisms and conversations. Probably, we were often wrong and at a minimum, we did not understand the challenges those judges faced.
Back in those days we often had something called an “open calendar.“ These would be times set aside for various litigants to meet with the judge for a ruling on a particular motion or agreement. One would arrange with opposing counsel and show up at the judge's chambers unannounced. We would wait our turns and we spent significant time waiting our turn. It was not uncommon for there to be tens of lawyers together at the Worker’s Compensation office, cooling our heels and waiting. We socialized, often anguished in our nervousness, and many times there was camaraderie and collegiality.
I will never forget one instance, as I stood in the hallway waiting my turn, when two of my peers exited the hearing room and began to converse amongst themselves regarding their hearing. I advanced in the queue, and continue to wait my turn. Their case involved a prescription for an orthopedic mattress. Claimant's counsel advocated this was an emergency and had sought the judge's intervention without awaiting a trial. The employer/carrier did not dispute the need for a mattress but denied it was an emergency, preferring to conduct discovery and to have a trial. It had also offered a twin-size hospital bed. The injured worker was displeased and wanted a king-size bed.
The crux of the dispute was that the claimant's spouse neither needed an orthopedic bed nor was necessarily entitled to one from the employer/carrier. The judge had split the proverbial baby that day, without a trial, and had ordered the employer carrier to provide a queen-size orthopedic bed. Counsel for the employer carrier was upset and decried the lack of evidentiary support for that outcome. The claimant's counsel, who had essentially succeeded, was equally upset at falling short of the king-size ideal. Both were angry with the judge. (hint, baby splitting can do that, as can premature benefit determinations without the due process of a trial).
But as I waited my turn, these two lawyers stood in the hallway outside the judge's hearing room, and perhaps outside the judge's hearing (though I’m not sure), and proceeded to discuss the potential paths forward, including appellate review. In this conversation, which I will never forget, the Claimant's lawyer, who had essentially prevailed, responded to the other “I know, he/she (the Judge) is so stupid.“ I had heard that word before as regards that particular judge. Perhaps the sentiment was common among the bar. I had also heard much criticism of the judge's well-know tendency to find a way to split a baby. I was astounded, however, to hear this criticism at that volume outside chamber doors.
I will not discuss the potential that this statement might or might not have been accurate; that is irellevant. I would, however, suggest and remind that derogation is dangerous in any event. Furthermore, it is exceedingly disrespectful to refer to anyone with that word. And, finally, it is even more disrespectful (and unwise) to hurl epithets or insults at the bench (or in its vicinity).
Is it possible that someone claiming intellectual superiority, decrying someone else’s intellect or intelligence, might seriously believe that there was some way that that comment would not reach the judge's ears, eventually? I would suggest there is reason to doubt the intellect of anyone who believes such a statement ("so stupid") uttered in front of a dozen lawyers will not find its way back to the judge (or other targets). Statements in public, insults and criticism, are highly likely to eventually find their way home. What will those statements say about the speaker?
And, above, I mentioned the naïveté of my cocoon, blinders of my busy young litigator existence, because it never occurred to me at the time. I was troubled by both of the lawyers' comments and demeanor. I was offended by their lack of professionalism. But one critical point never occurred to me at the time. Years later, I was honored to be appointed to the bench by Governor Bush. I had been presiding for less than a month when I got a phone call from a fellow jurist. The point of the conversation was whether I knew attorney so and so, and what did I think of her/his preparedness, ability, intellect, etc.?
Imagine my surprise and the epiphany that judges talk to one another also. And they talk about lawyers. On the line are reputation, standing, dignity, and respect. Of course, anyone is welcome to say anything they wish. There is, ultimately, free speech that is constrained in this country by minimal exceptions. But, understand that upon the foundation of those communications will your reputation and standing be built. Will you survive in the practice of law for 30 years or 50 years? Or, will you fade into memory, the subject of cocktail party rembrances and stories? I wish I could relate that the lawyers in the "so stupid" example had grown and persevered. I believe, however, neither of those peers practices any longer.
So, if a group of judges sits down in the row of chairs in front of you, impeding your view of the speaker, you might think twice about dropping an A-bomb. If it bothers you that much, move. When you become frustrated with your opponent, circumstances, and events, you might think twice before dropping the F-bomb. If you must, hang up or get away and utter it somewhere alone. And before you demean or denigrate someone, you might consider what your negativity, expressions, and attitude may be perceived to say about you.
These pages have featured discussion of “keyboard courage," see Anonymity and Emptional Intelligence (July 2022). I have written many times about the amazing transformations technology has brought to our world. Professionalism is suffering as a result of our lack of personal contact. But, the examples noted here are not the result of technology. They are plain and simple examples of poor personal decisions. They impugn honor and community, damage those involved, and they damage each of us, our community, and our profession.
Baz Lurhman recited a piece called Wear Sunscreen, written by Mary Schmich. It concludes with
Be careful whose advice you buy but be patient with those who supply it
Advice is a form of nostalgia, dispensing it is a way of fishing the past
From the disposal, wiping it off, painting over the ugly parts
And recycling it for more than it's worth
So, perhaps you choose to not buy any of this nostalgia or advice. Reputation is a challenge. We cannot control how others perceive us. However, we can quite literally control the volume of our own mud handed to them to sling. Trust me on the professionalism. It is literally the most important skill of lawyering. Its survival and the future of this professions is literally up to you.