Podcast - The Importance of Civility in Trial Law

Dan Small: This is "The Trial Lawyer's Handbook," podcast. I'm Dan Small, and I'm delighted to welcome Trish Rich. Trish is a partner in the Litigation Section in our, Holland & Knight's Chicago and New York City offices, co-chair of our Legal Professional Team and the professional responsibility partner in our Chicago office. Trish, thank you so much for joining me today. I'd like to dive right in. You are also the commissioner of the Illinois Supreme Court Commission on Professionalism, which in large part is talking about civility. What do we mean when we talk about civility? What does that mean to you?

Civility: A Deep Dive

Trish Rich: Dan, thank you so much for having me today. It's absolutely a pleasure to be here. So, yeah, as you mentioned, I work a lot in the space of legal ethics and professional responsibility law, and while I am a commercial litigator and I sit in the commercial litigation section here at Holland & Knight, I have a lot of experience representing lawyers, law firms, legal technology companies, in-house departments, government lawyers, etc., on issues where it touches, sort of, the regulation of the practice of law. And as part of that role, I sit as a commissioner, as you mentioned, on the Illinois Supreme Court's Commission on Professionalism, which is a body of the Supreme Court that encourages professionalism in the legal profession. And so when we talk about civility — and it is an issue that we're talking about with increasing frequently in the legal profession —when we talk about it, we're talking about something above what is required of us in the rules of professional conduct. Right? We should think about the rules of professional conduct as the floor for our conduct as attorneys. But when we talk about civility, what we're talking about is treating each other with respect and making sure that we are doing our best interests and our client's best interests by treating our co-counsel, our judges, our opposing parties, our witnesses, all of those people with sort of the fairness and respect that we want to be treated with.

We should think about the rules of professional conduct as the floor for our conduct as attorneys. But when we talk about civility, what we're talking about is treating each other with respect and making sure that we are doing our best interests and our client's best interests by treating our co-counsel, our judges, our opposing parties, our witnesses, all of those people with sort of the fairness and respect that we want to be treated with.

Dan Small: That's great. Are there states that actually require civility?

Trish Rich: So there are a few small handful of states that have codified civility codes in their rules of professional conduct. So remember, each state adopts its own version of the rules of professional conduct, and those are all now based on the model code. Our friends in California were the last people to adopt the version based on the model code, but that happened in 2018. And so all of them are based on the model code now, and a few states have opted to include civility rules in their ethics codes. Aside from those states, a number of others, like Illinois, for example, include civility pledges as part of the attorney's oath. So when an attorney gets sworn in to be a lawyer in the state of Illinois, they take their oath to uphold the Constitution and all of those things, and they also take the civility pledge. And actually, in Illinois, attorneys do that both when they're becoming attorneys, when they're being sworn in, but we also do in Illinois on the first day of law school as part of the orientation process for law students. And so the thought behind that is to go through sort of a formality to it, to impress upon our newest lawyers that our sort of longstanding civility values in the profession are important. And we want them to see that it's important and we want to talk about them with them because it's important.

Dan Small: Trish, in states that don't require civility, how do we sell that to lawyers and convince them that it's an important part of their practice?

Trish Rich: Well, let me make sure I'm clear. Just because some states don't have it codified in their ethics codes — in fact, most states don't have it codified in their ethics codes — doesn't mean we're not supposed to be civil. It's just that in those states that don't have the rule, you tend to see cases charged under other rules and the rules of professional conduct. Like, for example, they'll be charged under that state's version of 8.4(g), if it's a harassment or discrimination issue, or you will see it charged under one of the very broad catchall provisions in 8.4(d), which says you're engaging in conduct that's prejudicial to the administration of justice. So there are still rules, even in those states that haven't adopted civility language in their rules, to capture the kind of behavior that the bar regulators and the courts are worried about. And of course, don't forget that the courts always have an ability to sanction lawyers who are appearing, and clients, who are appearing before them and who are behaving in bad ways. But even over and above, sort of the stick of you might be getting in trouble if you don't do this, there are certainly carrots we can offer, right, and when we talk about civility in the profession, one of the things that the data shows us is that lawyers who engage civilly are more effective and achieve better outcomes for their client. It tends to lead to lower costs if you're not, for example, fighting about sanctions motions or discovery disputes or those kinds of things with your opposing counsel. Lawyers who are civil tend to build better reputations, and the data also shows they have higher job satisfaction. And at least at the Commission on Professionalism here in Illinois, we talk about this idea that as officers of the legal profession, as, you know, words of, you know, keeping the legal profession reputable, that we all lawyers and judges both play sort of a special role in preserving democracy and the rule of law, and that civility is an important and key component of that. So I don't want to focus just on sticks, we have some carrots, too, but in either sense, I think that civility is really important. And it's hard because litigation and lawyering is often just adversarial by nature. So we often have to sort of grab on to our better ourselves, but it really is a much more fulfilling way to practice law.

Just because some states don't have it codified in their ethics codes — in fact, most states don't have it codified in their ethics codes — doesn't mean we're not supposed to be civil. 

Dan Small: So you have a unique range of perspectives on these issues, everything from being a commissioner to being the professional responsibility partner in the Chicago office. What are you seeing? What trends are you seeing in the area of civility and professional responsibility?

Trish Rich: It's interesting. I think one thing I've noticed in the last few years is a strong uptick in cases both from disciplinary agencies and from courts on them sort of cracking down on what they see as uncivil behavior. I can think of a number of disciplinary cases that have popped up over the last few years where bars have disciplined lawyers for just kind of being jerks at depositions or trials and have said mean or rude things to their opposing counsel, or to the judge in one case I can think of here in Illinois. And so — and, of course, judges always have inherent authority to sanction the lawyers in front of them. So I do think we are seeing sort of an impatience about uncivil behavior from both the bench and the bar regulators, and I think they're trying to send a message that the profession is already tough and it's just tougher when we're not nice to each other. And there's part of me too, Dan, that thinks that, you know, the pandemic put us a little further of an arm's length away from each other, and that distance has sort of increased our ability to treat people badly in some instances. I mean, I guess it's no different than road rage, like you're a totally different person in your car than you might be standing there talking next to your neighbor. But I think and hope we're kind of getting back to normal, and I hope that we start building those relationships in a stronger and better way again.

Dan Small: I love the road rage analogy. Let's move from the civility to the more traditional professional responsibility issues that you're heavily involved in. What are the things that have surprised you most in your professional responsibility work?

Professional Responsibility 

Trish Rich: Well, I always get surprised by, the joke I always make when I talk and I teach is, you know, it's always surprising to me the number and types of ways that lawyers will find to get themselves into trouble. We are, if nothing else, a creative bunch. But I will say, I think the one thing that I sort of always circle around back to in the practice of law is that it's a hard job. It's a hard job because in many cases it requires you to have two full-time jobs, which is sort of the business of the practice of law, collecting your bills, getting your bills out, getting your time in, marketing, publishing, all of those things, and then actually just the nuts and bolts of the law practice. And watching the profession and lawyers in the profession really struggle with doing both of those jobs at 110 percent, 7 days a week, I'm not surprised that we see lawyers make mistakes, but I am often just impressed by, you know, sort of the dedication people have to the profession. And I understand that is a problem we face, right, is it's just it's the sort of a profession that you just never shut off. Like you never go home and don't think about that case, don't wake up thinking about that case. And so — and that is one of the reasons people like us end up in the practice of law, you know, perfectionists and type-A people and all of those things. But there are some detriments to that, too. And so I don't know, I love being a lawyer, but I you know, you have to sort of balance the best parts of it with the worst parts of it.

And watching the profession and lawyers in the profession really struggle with doing both of those jobs at 110 percent, 7 days a week, I'm not surprised that we see lawyers make mistakes, but I am often just impressed by, you know, sort of the dedication people have to the profession.

Dan Small: Absolutely. So let me shift gears again. In addition to your professional responsibility work, you're also a great commercial litigator. What was most important to your development as a trial lawyer?

Developing as a Trial Lawyer

Trish Rich: I actually grew up at the firm here, so I was a summer associate in 2005. And so now I've been at the firm for almost 18 years, I think, and I was really lucky that I got to work with some really great trial lawyers. The mentorship that you get and sort of the mid- to large-size law firm setting is something I think is really hard to replicate. And so I got to just work with some really great people. I also got some pretty decent trial experience really early in my career. By the time I was a first or second year, I'd been taking depositions, and I was hooked. I came out of law school thinking I was going to be a real estate lawyer, and I think that lasted like three or four weeks maybe. And part of that, to be honest with you, is like, I'm a first generation college student, so I didn't know lawyers growing up and I would grow up watching lawyers on TV, and there are no TV shows about contract lawyers sitting on their office, you know, writing contracts. And so from my very earliest age of being a lawyer, the thing I imagined was the lawyers on TV, and those were the trial lawyers, and that's what I wanted to do. So I was lucky. I just had a very specific idea of what that looked like. And I'm really lucky that I got sort of the experience and the mentorship early in my career to be able to make that work.

Dan Small: Has that become more of a challenge, do you think, for people coming out of law school now? How do we train the next generation of lawyers when there is so much at stake and it's hard to give responsibility to a younger lawyer?

Trish Rich: It is a challenge, right? And it's, I think, increasingly is a challenge as law firms everywhere struggle with remote work and getting people in the office. I worry about it with the associates I work with sometimes and the people I mentor at this firm and other firms and across the legal profession, because I don't think that there's any substitute for that one-on-one interaction. And so I just hope that the people that are coming up now that really want to be trial lawyers, really want to make this life their own, recognize that the way they're going to get good at that is by experience. And you get experience by showing up both metaphorically and actually physically showing up. Nothing has turned me into a boomer faster than wanting people to come to work, and I have to admit I feel badly about it. But for our profession, for what we do, I just think that one-on-one mentorship and that one-on-one working together is irreplaceable.

And so I just hope that the people that are coming up now that really want to be trial lawyers, really want to make this life their own, recognize that the way they're going to get good at that is by experience. And you get experience by showing up both metaphorically and actually physically showing up.

Dan Small: I think that's absolutely right. I can't tell you how I would have developed without being able to walk down the hall and talk to people or watch people or hear people. Definitely. And so as trial lawyers, we all learn from each other's stories and experiences. Do you have a favorite trial story or two from one of your cases? And what are the lessons to be learned from it?

Favorite Trial Story and Lessons Learned

Trish Rich: I have a bunch, and I'm currently awaiting an award in a big arbitration I did this year, so I may have a favorite one later this week, or not, but I can think of one when I was a mid-level associate where I had a witness on the stand and it was clear to me that he had lied about some financial documents. He had turned some documents over and they had been altered. And I had also sent a subpoena to the bank, a third party subpoena to the bank, and on the morning, this witness was going to go on the stand, that subpoena from the bank finally came through. And as soon as I saw the documents next to each other, I could see he altered them. So I brought those to court with me and I had them on the stand, and I asked him, did you alter these documents before you sent them to me? And he said, no. And you can time a mid-level associate at this point. I asked him the question like three or four times. And the judge now — by the way, she's retired and she's a friend, but we've never talked about this —and finally, on the fourth time, he put his head down and he's like, yes, I'll give that back. It was I was very much a dog catches truck moment, but I had kept asking him the question and I learned a valuable lesson because later the partner was like, you did not have to keep asking that question, everybody knew he was lying, and like, where were you going to go with it if he didn't admit it? And I was, I would just remember thinking like, I don't know. I don't know. Maybe I would have, maybe I would still be there in the Cook County Daley Center asking him if he altered documents, but getting him to actually admit on the stand he did that was remarkable, but it was, it was not the greatest trial tactic. So I also got to learn something important from it.

Dan Small: Well, sometimes we can accomplish things without following all the technical rules or commandments. So to close out, let me circle back to professional responsibility, because I think it's really such an important piece for trial lawyers. Holland & Knight calls this podcast "The Trial Lawyer's Handbook," any parting wisdom for lawyers in the heat of battle?

Parting Wisdom for Trial Lawyers 

Trish Rich: I think we just have to really dig deep and be nice to each other, even in those very tough scenarios. It's really hard, right? I'm a trial lawyer. I've been a trial lawyer for a long time, and I can get wrapped up in my case with the best of them. But for us, we have our obligations to our clients, but we also have our obligations to ourselves, our law firms, our profession. And one of my mentors at the firm used to always say, this is a Chicago-centric joke, so I don't know if all your listeners will get it, but you'll get the point. LaSalle Drive is circular, right? You're always going to run back into somebody, whether it's the judge, the client, the lawyer, the opposing party, the witness. It's your reputation is really key. And so being able to preserve and protect that from the earliest days of your career I think is really important.

I think we just have to really dig deep and be nice to each other, even in those very tough scenarios.

Dan Small: That's great. Trish Rich, litigation partner in Holland & Knight's Chicago office, I can't thank you enough for joining us, and good luck with your big arbitration.

Trish Rich: Thanks for having me.