Depositions are among the least likely places to encounter unprofessional behavior by opposing counsel, according to a survey recently released by the Illinois Supreme Court Commission on Professionalism. In fact, videotaped depositions were the most infrequently cited environment for encountering incivility — lower than the responding attorney’s own law office.
This (somewhat surprising) data point in the commission’s 2021 report on civility and professionalism shows a significant improvement from prior years, when depositions were hotspots for uncivil behavior. In fact, pretrial discovery generally, and nonvideotaped depositions particularly, were the most frequently cited environments for encountering unprofessional behavior by attorneys in 2007.
Today, the top spot belongs to email, text, and written correspondence: 32.8% of 2021 survey respondents said they “occasionally” encounter unprofessional conduct in these types of communications, with 6.3% indicating they “frequently” find unprofessionalism in these media.
There was more good news in the commission’s report. Unprofessionalism as a whole appears to be diminishing. The percentage of attorneys who reported experiencing incivility from opposing counsel has fallen since the commission’s 2014 report, possibly indicating that the legal community’s work in this area is beginning to bear fruit.
What Is Incivility?
“Incivility” is a broad term that can mean many things to different people. Within the context of the legal profession, however, the term “incivility” describes a somewhat narrow set of behaviors that nearly every lawyer encounters early in his or her legal career. The uncivil and unprofessional behaviors documented in the commission’s 2021 report (ordered by frequency among survey responses) include:
- Sarcastic or condescending attitude
- Misrepresenting or stretching the facts, or negotiating in bad faith
- Inflammatory writings in correspondence, memos, briefs, or motions
- Playing hardball (such as not agreeing to reasonable requests for extensions)
- Indiscriminate or frivolous use of drafts, pleadings, or motions
- Inappropriate interruptions of others (e.g., clients, colleagues, counsel, judges, witnesses)
- Inappropriate language or comments in letters or email
- Swearing, verbal abuse, or belittling language
- Inappropriate comments about a lawyer’s age or experience
- Sexist comments
- Racially or culturally insensitive comments
According to the report, “uncivil or unprofessional behavior in the form of sarcasm, misrepresenting facts, inflammatory writings, and playing hardball accounted for over 50% of specific instances of incivility” mentioned by survey respondents. Incidences of racial, gender, and sexual harassment accounted for less than 5% of incivility experiences.
An overwhelming majority of survey respondents — 88.7% — consider lawyers to be “civil/professional” or “very civil/professional.”
The report’s authors noted that, although small in absolute numbers, the incidence of incivility stemming from remarks about a lawyer’s race, age, and sex has grown since the commission’s prior 2014 survey. In 2014, 4% of respondents cited inappropriate comments about their age or experience. In 2021, 16.6% reported this type of incivility.
In 2014, 2.8% said they have been the target of sexist comments. In 2021, that figure was 12.3%. In 2014, just 1.6% of respondents said they had been the target of racially insensitive comments. That number rose to 6.5% in 2021.
Incivility in litigation has a price beyond taxing everyone’s patience. Survey respondents overwhelmingly agreed that uncivil behavior prolongs pretrial discovery and negotiations and leads to an increase in litigation costs. It is also widely believed to harm public and client confidence in the legal profession.
There’s strong agreement within the legal profession as to why incivility occurs. Largely it’s because the offending attorney is struggling to maintain equanimity in the context of a highly competitive, adversarial legal system. Frequently cited contributors to unprofessional behavior include:
- “Win at all costs mentality”
- Poor morals or ethics
- Stress and pressure of the legal profession
- Client demands
- Poor mentoring/training of young lawyers
- Adversarial system
- Rise in profit orientation of legal profession
- Ineffective trial judges
A growing number of lawyers today also see sexism and racism as a source of the unprofessional behavior they experience in their professional lives.
Where Is Incivility Encountered?
According to the commission’s 2021 report, the following environments were cited by survey respondents as venues for uncivil and unprofessional behavior by lawyers. Listed below in order of frequency, they are:
- Email, text, and written correspondence (occasionally 32.8%, frequently 6.3%)
- Telephone conversations (occasionally 28.2%, frequently 6%)
- In meetings (occasionally 29%, frequently 2.6%)
- During court, mediation, or arbitration proceedings (occasionally 18.2%, frequently 2.9%)
- In nonvideotaped depositions (occasionally 10.1%, frequently 3.1%)
- Among lawyers on social media (occasionally 7.3%, frequently 2.9%)
- At a law firm, place of employment (occasionally 7%, frequently 1.7%)
- In videotaped depositions (occasionally 6.1%, frequently 1.6%)
Survey data indicates that lawyers in 2021 were about as likely to encounter uncivil behavior in their own office as they were in a deposition. That’s a welcome development. It’s commendable too, in view of the fact that coping with COVID-19 restrictions has required litigators to sort through a number of novel and sometimes contentious legal issues. Whether it’s negotiating remote deposition protocols, preparing witnesses, preventing witness coaching, managing exhibits, or addressing COVID-related objections to masks and refusals to attend depositions due to health concerns, the pandemic has demanded – and often brought out – the best from the legal profession.
The relative lack of incivility during depositions is a marked departure from prior years. The Illinois Supreme Court Commission on Professionalism’s 2007 survey found that nonvideotaped depositions were the second most likely professional setting to encounter uncivil behavior, with 15% of respondents indicating they frequently encountered incivility in nonvideotaped depositions and 47% indicating the occasionally met with uncivil behavior in that setting.
Only pretrial discovery ranked higher (26% frequently, 47% occasionally) for uncivil behavior that year.
The 2007 report’s authors believed that lawyers were more likely to engage in uncivil behavior when they believed it would not be detected by third parties. They remarked that “uncivil behavior is most likely to occur behind the scenes (e.g., in depositions without videotape or in telephone conversations between opposing counsel) than in venues in which their behavior might be witnessed or documented (e.g., in written correspondence or in videotaped depositions).”
This observation was borne out by the survey results that year. Uncivil behavior was encountered in email and written correspondences at about the same frequency as “in plain view” environments (meetings, arbitrations, mediations, closings, and social gatherings), but well behind incivility hotspots such as pretrial discovery, depositions, telephone conversations, courthouse hallways, and settlement discussions.
Fast-forward to 2021: Emails and written correspondence are now the leading sources of uncivil behavior, despite the fact that these communications are self-documenting and relatively easy to bring to the attention of judges and bar regulators.
Could it be that today’s lawyers are less likely to engage in uncivil behavior when in the presence of the target of their bad manners? And less inhibited, and more likely in 2021 to engage in uncivil behavior, when dashing off an electronic communication to opposing counsel miles away? That’s one explanation for why depositions are relatively less likely today to be the source of uncivil behavior than they were a decade or more ago.
Responding to Incivility
When faced with uncivil behavior by opposing counsel, most lawyers say that they ignore the behavior. Others will directly confront the offending attorney. Still others, albeit a very small minority, will respond with incivility in kind.
Although each attorney’s response to unprofessional behavior depends on their approach to the practice of law — and to the needs of the client in that particular case — litigation experts and bar regulators frequently offer this advice:
- Know your jurisdiction’s rules of civil procedure and its published standards on professionalism and civility.
- Determine whether the offending behavior is a failure of manners/professional decorum or a litigation tactic.
- Remember that intimidation is largely ineffective as a litigation strategy.
- Stay calm; do not respond in kind. Continue to focus on the merits of your case.
- Do not respond to uncivil communications immediately. Treat opposing counsel with courtesy, regardless of the circumstances.
- Document your actions and responses in writing.
- Do not be afraid to expose bad behavior and dirty tactics.
In the end, it’s important to remember that judges have little no patience with unprofessional behavior, and few find incivility persuasive or helpful. On the other hand, a reputation built by adhering to the highest standards of the legal profession is an asset that attorneys can draw on, for themselves and their clients, throughout their legal career. Gracefully responding to opposing counsel’s incivility – whether during a deposition, in court, or in written communications – will build or burnish the reputation you want to have in your community.