How might we promote a practice of law that is both exceptionally effective and highly civil? As members of the WSBA, we should all care about this question. The effective practice of law is a cornerstone of our democracy and key to a thriving market economy.
Civility promotes justice and reduces transaction costs. Incivility is expensive. Nationally, it is well documented that incivility
costs us in terms of our business, our health, and our ability to
deliver on our legal system’s promise of justice for all. But is incivility really a problem in our state? And even if it is a problem,
what can we do about it? These
were some of the fundamental
questions we set out to answer
when Robert’s Fund’s Civility Center for the Law, Seattle
University School of Law, and
the WSBA joined together in
May to survey WSBA members
about civility in the profession.
Our inquiry was in five parts.
First, we asked participants to
name a specific opposing counsel who was both exceptionally
effective and highly civil. We
hoped to derive an understanding of the language used to
describe those we found to be
exemplary members of the Bar,
both in terms of civility and
representing of their clients.
The second part of the survey
asked participants to rate their
exceptionally effective and civil
opposing attorney on a number of personality traits. We wanted to see if there was indeed a set of personality characteristics
that could be linked to those perceived as both civil and effective.
A link to particular traits might give us ideas to best construct
learning opportunities that maximize those traits in our profession. The third part of the survey asked participants to rate their
exceptionally civil and effective example on a variety of provisions that commonly occur in civility codes and pledges adopted
by bar associations across the country. We were curious to see if
the traits and behaviors identified by various codes matched up
with practitioners’ views of whom they saw as their most civil and
effective colleagues in practice.
THE WSBA CIVILITY SURVEY
The next section of the survey asked participants to report
the frequency at which they experienced civility in a variety of
practice settings. In this case, we intentionally asked people
to rate how often they experienced civil as opposed to uncivil
behavior. Most bar surveys conducted across the country ask
the opposite — when have people experienced incivility. We
were curious to know whether asking individuals to focus on
the positive as opposed to the negative would impact the results. We were also curious about whether the phase of proceeding or type of activity involved had an impact on civility.
For example, was there more
civility in written as opposed
to spoken communication or
more civility in court than in
discovery? Finally, we asked
participants to tell us what
they thought the legal community could do to promote
civility in the profession.
Survey data was collected from
May 2–19, 2016. 772 people
started the survey and approximately 650 completed the questions. Those who responded
appeared to match WSBA demographics in terms of whether
their practice was civil or criminal in nature, their age, gender,
years in law practice, size of
practice, and size of jurisdiction. Though rigorous sampling
methods were not employed, it appears overall that those who
elected to participate roughly match the composition of the WSBA
as a whole in many ways.
Part of what made this survey different from others examining
civility in the legal profession was its focus on the qualities and
characteristics of a specific opposing attorney. We hoped to obtain
real-life examples to show that effective advocates are also civil.
In terms of personality traits, the exceptionally effective
and civil opposing counsel were identified frequently as people who were dependable, self-disciplined, calm, and emotionally stable. They were not typically identified as critical,
quarrelsome, anxious, easily upset, disorganized, or careless.
Face to Face
Never Always Often Sometimes Infrequently
Never Always Often Sometimes Infrequently
by Lisa E. Brodoff and Timothy M. Jaasko-Fisher
Promoting the Civil Practice of Law