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Two old rivals reconsider place for civility among adversaries

By Michael R. Panter

Before becoming a mediator with ADR Systems, Judge Michael R. Panter presided over civil jury trials, motions and hundreds of pre-trials, taught law school and was an a trial lawyer for 38 years.

Before becoming a mediator with ADR Systems, Judge Michael R. Panter presided over civil jury trials, motions and hundreds of pre-trials, taught law school and was an a trial lawyer for
38 years.

With high financial stakes, demanding clients and looming deadlines, it’s easy to let our control of our words and actions slip under pressure. Nearly every day we read stories about lawyers being uncivil and doing uncivil things — most of the time, in high-pressure situations.

Don’t make the mistake of believing that a terse courtroom comment or a little squabbling is part of zealous advocacy for your client. It might feel like a way of blowing off steam, but it’s making a desirable end result harder to achieve.

I was thinking about lawyer incivility recently, when I sat down with Bradford S. Purcell, a partner at Purcell & Wardrope, of Chicago. He’s been a trial defense lawyer for nearly 30 years, and we go way back as courtroom adversaries. Although we’re now friends, it took a while to get there before things clicked. That’s where we’ll start this story off.

Panter: The first thing I want to say to you, face-to-face and on the record, is: I was completely uncivil in cases that you and I had as lawyers, and I just want to put that on the table.

Purcell: Most likely you were responding to my incivility.

Panter: Let’s think about this a second. Why did that happen?

Purcell: I think a part of it was youth and what goes along with that. I think that another component of it is that both of us were cut from the same cloth in the sense that we are competitive people. We are aggressive advocates for our clients and, sometimes, youth and the advocacy that we want to project for our client can produce exactly the result that we saw in our depositions and court hearings.

Panter: What do you think you and I could have done differently that would have broken that cycle?

Purcell: One of the things that I find helps is getting to know the attorney beyond just the court hearings or the deposition. When you have a relationship with somebody, where they’re not just your opponent, you can still be the aggressive advocate. You can still be the lawyer who’s looking out for the interest of your client in a zealous, aggressive manner — but you don’t cross that line to incivility. Because you know, at the end of the day, you’re just dealing with another lawyer who’s trying to do the best they can to advocate for clients.

Panter: How have you gotten to that point with some of your opponents?

Purcell: It can be something as simple as small talk before or after a deposition. … Find a common ground. We’re all in this together. The litigation community, I find, the older I get, the smaller it gets. For some reason you see the same faces. You’re going to be confronted with the same people. If you get an opportunity to just have some idle chit-chat with them, I think that’s where it starts.

Panter: Can you give me a story where you were able to do that?

Purcell: The best story that I have is the one that I share with you, to be honest. … What’s interesting about our story is that the amount of time that lapsed from when we were opponents in litigation and when we were able to bridge that gap; of knowing you as somebody other than that opponent. And it came when I was in court and I was waiting for a very heated, contested motion with an opponent and out on the bench strolled you. I had no idea you had been appointed to the bench, and I just remember my jaw dropping. I felt a thin film of sweat form on my forehead, thinking “I now have this contested motion, in front of this judge who as a lawyer I battled with for years.” I have a good idea of how this motion is going to turn out, and when I approached the bench, you looked at me and I looked at you. We were thinking the same thing, but there was a respect that you knew I had for you, and hope that respect was mutual. I think from that point forward, we were able to then break that barrier and really get to know each other as people, beyond lawyers.

Panter: I remember us being in chambers, and we just looked at each other and started laughing and thinking, “How stupid were we?” What a waste of time and energy just not accomplishing anything, not helping our clients, driving ourselves crazy. And that moment we were both laughing is one of the really cherished moments of my career.

Purcell: It was a great moment. I think in the final analysis, with some years under my belt in this highly competitive business that we’re in … it’s a very, very stressful way to earn a living being a litigator in this arena. Enormously stressful. I have asked myself along the way, why add stress by creating unnecessary friction, by creating not only an opponent, but someone with whom you are personally adverse? All that does is create stress. It prevents you from working with your opponent, and we all have to work together — I mean, we’re all confronted with similar stresses.

Panter: Do you have any other thoughts or advice for lawyers to break the cycle? To get more cooperative?

Purcell: It’s a mindset. You have to make an effort. It’s very easy just to do what you have to do and leave, and not try to get some rapport with your opponent. It’s not anything other than a decision on your part to say, “This is the approach I am going to take.” I think it’s as simple as that. I would like to see, and I think I have seen in the recent past, the lawyers getting along better. I think that’s where it is trending. I think it is a byproduct of how this business has become much more stressful. Over the trajectory of the almost 30 years I’ve been doing it, I think this job is becoming more stressful by the year. That’s not just me. That’s in talking with other lawyers that are involved in this thing and on both sides. We need each other to do this job in a manner that doesn’t end up grinding us to nothing.

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