Substance and Style

• Publication year: 2019
• Pages: 36
• Citation: Vol. 88 No. 1 Pg. 36

Substance and Style No. 88 J. Kan. Bar Assn 1, 36 (2019) Kansas Bar Journal January, 2019

Respectfully Submitted

Writing with Respect for Courts, Counsel and Others

by Tonya Kowalski

I remember my first opposing counsel "nasty-gram." I was a green attorney who had just helped to file a very carefully prepared complaint in a routine commercial case. The letter arrived a few days later, reeking and dripping with anger and sarcasm, and threatening a quick and painful end to both my client's business and my career. Vacillating between anger and terror (what if they're right?), a lot of draft responses and unbilled hours lay on the cutting room floor before I could muster a civil response. Little did I know that this would eventually become a routine experience: nasty letters, angry telephone messages, scathing personal attacks in briefs and so on.

I am grateful for the mentors and professors who cautioned me and my peers always to preserve our reputations, to take the high road, not to succumb to the Dark Side. But I also counted the casualties: the many drawn-out cases that should have been so much easier and less expensive, the clients who became embittered at the system, and sometimes even the joy of serving the profession.

For green attorneys still experiencing this rite of passage, please know that the offenders out there are not fooling anyone, except for possibly your anxious, first-time client, who will need your care and reassurance. Those offenders are damaging their own reputations beyond repair.^[1] But even worse, every uncivil act causes another little crack in the rule of law.

The Rules of Professional Conduct instruct that lawyers "should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials."^[2] They also prohibit "undignified or discourteous conduct degrading to a tribunal."^[3] So how does a lawyer learn to communicate confidently and even forcefully, but also with respect?

When communicating with or about opposing counsel:

1. Do perform some word-of-mouth research on your colleague's reputation before engaging with him or her for the first time.

2. Do learn to stay centered and focused on the client's needs rather than your own feelings.

3. Do recognize the role each lawyer plays in forming the parties', witnesses, and jurors' perceptions of the legal system and rule of law.

4. Don't make a practice of referring to opposing...