Too many lawyers treat adversaries, other witnesses, and others as somehow not deserving of the same dignity as the lawyer's client. The Model Rules do not require lawyers to treat adversaries or others with whom they contact in a case with respect. (I realize Rule 3.4 has bounds on, for instance, asking witnesses questions for which the lawyer has no factual basis; beyond that, the Rule asks merely that lawyers not falsify evidence, etc.) The value of respecting others is among many not mandated by Rules. That reality is one of the reasons many are intrigued by the extent to which the Carnegie Report, Educating Lawyers, explores a lawyer's "professional identity" as more than whether the lawyer complies with the Rules.
I spoke with a student this week about her internship in a trial court. She had the opportunity to observe a number of trials and, thus, a number of different lawyers. We discussed how different lawyers dealt with opposing counsel and witnesses. It was clear that the student was offended by the manner in which many lawyers treated opposing counsel, parties, and witnesses. She described conduct that I recall seeing far too many times--a lawyer rolling eyes and sighing while opposing counsel is making an argument, or an opposing party is being questioned; sarcastic tones in questioning opponents or witnesses; and nonverbal conduct that the opponent was someone who the lawyer perceived as "less than."
I asked whether there were any lawyers who handled themselves differently. I was glad to hear that she had seen a number of lawyers whose conduct conveyed respect for opponents and opposing witnesses. These lawyers, she said, not only refrained from the verbal and nonverbal behavior such as that described above. They conveyed, by how they handled themselves, that they respected others' opportunity to have their say. She noted that they were not less effective advocates, but usually more effective than the disrespectful lot. A cross-examination could be penetrating and damaging to the other side without the "aid" of sarcasm.
The lawyers I have known who adopted the value of respect do so naturally. It seems to be an outgrowth of how they view others in general. I remember one of them, the head of litigation in a large law firm, taking a half hour one day (while we were doing some fairly challenging work) to talk to a member of the housekeeping team. To many, that lady would not have justified "their" time. To this lawyer, talking to the lady (he later told me he noticed she seemed stressed) was the right thing to do.
Carnegie encourages us to raise for our students the question of what kind of professional identity they will have--or, to put it directly to an aspiring member of the bar, "what kind of lawyer do you want to be." My conversation with this student encouraged me to find ways to weave into a class questions like: "Can you be an effective advocate and respect others at the same time?" If we do not ask these questions, will we not inevitably send out students who become lawyers who mistakenly think that they have to act in the ways that offended this student? If so, we ought to consider the reality such behavior (1) can turn off the judge or jury, (2) give one the reputation as someone willing to go to any lengths for a client, and (3) most subtly, lead the lawyer who acts this way--over time--to not like herself/himself? But most importantly, isn't the reason a lawyer should treat others with dignity and respect because it's the right thing to do?
Professor Ben Madison