Civility in the Practice of the Law - What Winnie the Pooh Can Teach Lawyers About How We Operate

One of my favorite episodes of the Winnie the Pooh (OK, I admit it, yes, I have and still do watch Winnie the Pooh) contains a song in which Pooh while trying to sneak up on a bees nest sings a calming song; he starts off with, "I'm just a little black rain cloud, hovering under, a honeytree . . . I'm just a little black rain cloud, pay no attention to little me . . ."

Attorneys, often using a subtle form of kindness and civility are actually trying to steal honey right out of your nest. A few phrases I always avoid in practice when dealing with opposing counsel: (1) "I hear you"; (2) "I appreciate where you are coming from; (3) "I understand what you mean" - or some version of the above. Why? Because all of these phrases indicate that I agree with opposing counsel and normally, as an advocate, I do not, or at least, as is the nature of any adversarial proceeding, my client's position is in direct contrast to the arguments of the opposing party. So why soft soap the other side? Why given the false impression that you are in agreement when you solely intend to oppose them in every respect?

Some see it as a strategy and use it as a tactic. It is undeniable that many attorney get excellent results from doing so; I view it as disingenuous. Now now, I am not calling one of my generation's favorite cartoon characters disingenuous. There is a lesson to that video - Winnie the Pooh is unsuccessful in his attempt to steal the honey he is after. In fact, he ends up almost swallowing a fistful of bees.

Since I began practicing law in December of 2009, the ABA and the NYSBA published numerous articles on the importance of "civility" in the practice of the law. I could not agree more but as the age old adage goes, "don't mistake my kindness for weakness" (thank you Al Capone for that one). There is a difference between soft soaping and making it even more difficult on you and your client to pivot later on by placating your adversary with kind comments and disagreeing with opposing counsel in a civil manner. I often say, "I did not know your opinion before . . . now I know it. I have a different opinion," (then I proceed to tell them my client's position).

This is not to say that there is nothing to be learned from Winnie the Pooh. In litigation, particularly if you are new to the field of labor arbitration, the below quote from Christopher Robin is very inspiring and I have thought of it in my personal life too, having recently gotten engaged! Woot!

"Promise me you'll always remember: you're braver than you believe and stronger than you seem and smarter than you think."

I am not implying that you should over project your skills (never do that) or underestimate your adversary (another NEVER do). Personally, I believe that either of the two can be fatal mistakes in any proceeding. What I am saying is stand your ground in a civil manner through the use of the law, facts, excellent preparation and a forthright manner of dealing. You represent a client and that client is counting on you to do your ethical duty - to protect their best interest - to do everything you can without being unreasonable or uncivil; ultimately, to garner the best outcome you can for your client.

Lastly, push as hard as you can in a civil manner and let opposing counsel stamp up and down until they are blue in the face. This is a tactic I find quite useful as it only tells me one thing; opposing counsel likely knows that they cannot win because the law or the facts are not on their side. To try and fix that, they are trying to huff and puff enough on the off chance that they might be successful in blowing your proverbial "house" down and getting you to settle.