Lawyer and a witness in a courtroom.

Civility was, historically, a trademark of the legal profession. For years, lawyers such as Abraham Lincoln and Thurgood Marshall—notorious for their fierce advocacy and great legal minds—epitomized this hallmark. The remarkable characteristics of these legal giants were portrayed on TV and in films by characters like Atticus Finch and Perry Mason.

Nowadays, civility is often substituted for hostility. The Perry Masons of the world have long been eclipsed by the likes of Harvey Specter (Suits), Jack McCoy (Law & Order), and Patty Hewes (Damages). These fictional TV characters, albeit different in many ways, are similar in their “take no prisoners” approach to the practice of law. Scenes that once depicted clever presentations of evidence have been traded for bullish behavior and fiery exchanges. Yes, these portrayals are fictional and sensationalized, but they also represent a cultural shift in the legal profession where civility is often an afterthought, and sometimes not a thought at all.

Recently, a partner, Paul Reid, was suspended from Shook Hardy & Bacon for objecting to his pregnant opposing counsel's request for a continuance of a trial that coincided with the period she would either be due to deliver her child or on maternity leave. Shook Hardy issued a statement following its decision to suspend Paul Reid, reasoning, in part, “[a]s attorneys, we zealously advocate for our clients every day in court; but we expect our lawyers to do so in an appropriate and respectful manner.”

Critics of Reid's suspension argue that his actions represented little more than zealous advocacy. Reid's client, Scott Aswege, was badly injured five years ago after he fell 20 feet from the platform of a lift manufactured by the defendants. Aswege's lower right leg was amputated and he can no longer work in his field due to his injuries. At the hearing where the request for a continuance was heard, Aswege's desperation was palpable. After the judge indicated the case would be continued, Aswege interrupted to emphasize that the trial “can't happen in January.”

That there is controversy over Reid's suspension suggests there was at least some basis for his opposition to the continuance. By any account, Reid's behavior is mild compared to some recent episodes in Philadelphia (names have been omitted).

Last month, in another matter, according to a declaration filed by plaintiffs counsel in support of a motion for sanctions, the defendants' counsel repeatedly cursed at plaintiffs counsel and used more than 10 expletives during a court-ordered meet-and-confer session. Plaintiffs counsel quoted defense counsel as boasting, “I'm well known for being unreasonable and you haven't seen nothing yet.” Defense counsel did not deny these allegations in his response to the motion.

In another case, a judge scolded five lawyers for their conduct during discovery. After denying multiple discovery motions, the judge read a lengthy statement into the record. The judge outlined the troublesome procedural history of the case, which included more than 10 discovery hearings; admonished the attorneys for what he described as the worst behavior he had seen in his nearly three decades on the bench; and encouraged the lawyers to reconsider their professional goals.

• Why has hostility become so prevalent? There are many possibilities, but one certainly is the advent of technology.

Electronic discovery has morphed into a multibillion-dollar industry. By one estimate, discovery costs approximately $42.1 billion per year—more than the GDP of half the countries in the world. Many litigators attribute at least half their billable hours to discovery. This work is often tedious, mundane, and a far cry from the life of an advocate many of us imagined.

Managing discovery is stressful enough, and it is exacerbated by tactics employed by lawyers who believe that a case must always be won in discovery. Their tactics run contrary to the foundational underpinnings of the discovery process, which is designed to facilitate the free exchange of information. This tension leads to constant discovery disputes, particularly because email has created much more discovery to fight over than a few decades ago. One need only look at discovery court in Philadelphia to understand the magnitude of this issue. On any given day, there are hundreds of lawyers, some holding multiple redwells.

For a lawyer dealing with multiple discovery disputes, life is stressful. This stress can cause lawyers to act disproportionately hostile. This problem is further magnified by the fact we live in a world where thoughtful letters have been replaced by quick, and often incessant, emails. Long gone are the days when there was a week between communications. Now, lawyers are expected to respond to emails the same day. And, they often do. This practice leads to knee-jerk communications that are rooted in emotion, not logic.

This practice breeds hostility, and this hostility is contagious. Lawyers who are mistreated by another become more stressed and unhappy. They then act hostile toward others, causing the cycle to continue.

• How can young lawyers break this cycle? Consider three people: the judge, you and opposing counsel.

The judge. Lawyers should assume any email they send to opposing counsel could end up attached to a motion and in front of a judge. The same is true for conversations, like the one discussed above at the meet and confer session. This means attorneys must be cognizant of how a judge overseeing hundreds of cases will view their behavior. If your position or behavior is not one you are prepared to justify to a judge, you must adjust your strategy.

It is important to remember that judges are members of society and thus are influenced by societal norms. In Reid's situation, even though there may have been legitimate reasons to oppose a continuance, these reasons did not exist in a vacuum. If the judge denied the defendants' request for a continuance, this would have been prejudicial not only to the defendants but to their female lead counsel who handled the case from its inception. A decision that prejudices someone because of his or her gender would be extremely unpopular today. Lawyers should assume that judges' decisions will be influenced by societal norms and in support of equality.

You. Cases and clients will come and go, but the one constant is you. To understand the importance of this, one need look no further than John Proctor's famous exclamation at the end of “The Crucible,” “Because it is my name! Because I cannot have another in my life!”

While we must zealously advocate for our clients, we must remember ourselves, too. Zealous advocacy does not mean we must fight every battle our client demands, nor does it require us to advance every available argument, particularly ones that could have a devastating impact on our credibility. A loss of credibility affects not only that client, but future clients. A good reputation that took years to build can be destroyed by one bad decision. Likewise, a bad decision early in your career may be difficult to overcome.

With this in mind, consider whether that “nastygram” is warranted, or whether it merely serves as a cheap thrill. If you are responding to a nasty email, take a few deep breaths before you start writing. After you have finished the email, save it as a draft and review it the next day. It is amazing what today's you has to say to yesterday's you. It is also helpful to have a colleague review the email to make sure it is appropriate.

If a client insists you advance an argument that could have serious consequences and is unlikely to be successful, explain why you cannot do what he is asking. Educate your client on how this argument will be perceived by the judge and how that perception could negatively impact the case. Most clients will understand and heed your advice. If a client does not, consider withdrawing. No client is worth the sacrifice of your career.

Opposing counsel. They do not need to be the enemy for you to be a zealous advocate for your client. In fact, having a cordial relationship with opposing counsel is usually a benefit to you and your client. With more than 95 percent of civil cases ending in settlement, litigation is far from a zero-sum game. While you will not lose anything from being courteous, you can lose a lot by being hostile. For example, settling a case is often in your client's best interest, but can be very difficult to achieve when the lawyers have a hostile relationship.

Further, we owe a duty of civility to one another under Pennsylvania's often overlooked Code of Civility, enacted in 2000 in response to growing incivility among lawyers. In such a competitive and stressful profession driven by billable hours and riddled with substance abuse, we can afford to offer one another civility. Remember that a lawyer's hostile behavior likely has little to do with you, and much more to do with the stress of the profession and life itself. As a general rule, reasonable requests related to health or family should always be granted. If your client opposes these simple courtesies, explain that granting someone a courtesy merely gives them something they will receive from the court anyway, whereas refusing one can destroy your credibility with the judge.

If we all incorporate these three considerations into our practice, we can greatly improve civility in the profession.

The YL Editorial Board members: Leigh Ann Benson, Rachel Dichter, Rigel Farr, Scott Finger, Sarah Goodman, Thomas Gushue, Kevin Harden, Jae Kim, Kandis Kovalsky, Ginene Lewis, Lindsey Mills, Bethany Nikitenko, Juliann Schwegler Kelley, Rob Stanko, chairman; Jeffrey Stanton, Shohin Vance and Meredith Wooters