Recently, the Cincinnati Bar Association hosted a civility symposium including three 2-hour CLE sessions to promote civility training for groups who are typically opposing parties in legal matters. We started with the Hamilton County Prosecutor’s Office and the Hamilton County Public Defender’s Office as participants. It’s not because these two groups lack civility or had a history of failing to cohesively work together, but because they are often on opposite sides of the fence and because Prosecutor Connie Pillich and Public Defender Ray Faller agreed to having their respective offices participate. The purpose of this civility training is to try to understand the perspective of your counterpart in order to gain respect for their position while also understanding that we all come from unique backgrounds that help inform our perspective.
Our first session in October started with words of encouragement from Hamilton County Court of Common Pleas Judge Wende Cross and Ohio Supreme Court Justice Pat Fischer and included 20 participants. The civility discussions are being guided by local attorney, Sherri Goren Slovin, who for many years convened the Beyond Civility events in Cincinnati. Our final 2-hour session for this inaugural program was in December.
We have been very pleased with the participation in the program and are sincerely thankful for the Prosecutor and Public Defender Offices’ engagement. The CBA will be evaluating whether to continue this program next year and welcomes CBA member recommendations for other potential groups within the CBA to participate in additional civility training.
Please email me (tcoates@msdlegal.com) or call me (513) 665-0204 with any recommendations for future civility training participants. We are thankful that the Cincinnati legal community has a generally collegial bar, but there is still work to be done and we look forward to putting in the work.
Beyond formal training programs, civility also requires daily practice in our interactions with opposing counsel. Based on my litigation experience, here are a few practical approaches that have proven effective.
Over the past few years, I’ve handled hearings in many state and federal courts including: Ohio, Kentucky, Illinois, Wisconsin, New Jersey, New York, Massachusetts, Virginia, Maryland, North Carolina, South Carolina, Georgia, Florida, Louisiana, Colorado, Montana, Minnesota, Texas, Arizona, and California. I’ve also participated in over 100 class action mediations during this time. I give this background to illustrate my experience with many different attorneys and judges from many jurisdictions. Please note I don’t have the practice of law or life figured out and still learn and make mistakes every day. I have, though, pulled a few important practice pointers from these diverse interactions that help promote civility and productive working relationships with opposing attorneys. Here are a few practice points I recommend for advancing your client’s interest while still forging a productive working relationship with opposing counsel.
1. If possible, always grant reasonable extension requests
Whether it be page, word count, and/or time extension requests, I generally agree to all reasonable extension requests (key word being reasonable). This generally means extensions that do not prejudice your client’s position, delay critical deadlines, or appear to be dilatory tactics. I understand that we all have clients and certain clients don’t want to give an inch to the other side, but I generally get client blanket authority to permit me to grant any and all extension requests that we, as their counsel, deem appropriate. Also, don’t seek to reduce an opposing party’s reasonable extension request. First, it has not been my experience that my client gains anything by opposing reasonable extension requests. Second, courts generally grant reasonable extension requests anyway, so you don’t want to put yourself in a position of failing to agree to reasonable requests. Third, I’ve always had opposing counsel return the favor in granting any extension requests when my side previously agreed to the other side’s extension request. You never know when you’ll need an extension because of your and/or your client’s schedule and you’re far better off granting reasonable extension requests so that your extension requests will be similarly approved.
2. Pick up the phone
In today’s electronic driven world, we primarily communicate with opposing counsel via email. I encourage members of our firm to pick up the phone and speak with opposing counsel at the beginning of the case and whenever there are important topics at issue. This usually sets a tone for open communication in the case and helps us set expectations. I’m generally of the opinion that the more information opposing counsel is willing to provide informally helps us get more information about the case and permits us to better counsel our clients on next steps. I also encourage our team to really participate in speaking with opposing counsel, which includes speaking and listening. And there is a distinct difference in talking with and talking to someone. No one wants to be talked to (i.e. talked at). Like any productive relationship, open communication is critical.
3. Start sentences with “please” in emails instead of asking questions
I generally try to start emails with a “please” statement instead of a question mainly because I receive better and less defensive responses from opposing counsel. Let’s use the example of where an opposing party promises something by a certain date and doesn’t deliver by the promised date. Instead of sending an email that says, “You promised me the discovery responses by Friday. What is the status of the discovery responses?” try “Please let me know the status of the discovery responses.” I have generally received timely and more fulsome responses when using the “Please” version of following up instead of questions.
4. Always shake opposing counsel’s hand after hearings
Ohio Supreme Court Justice Pat Fischer has long promoted shaking opposing counsel’s hand after hearings as a means for promoting civility within the inherently adversarial practice of law. I am in total agreement with Justice Fischer on this point. Having appeared before many courts with various opposing counsel, I have made it a point to always shake opposing counsel’s hand after a hearing and wish him/her well for the rest of the day. This is a small step that goes a long way in showing that even if we vehemently represent our respective client’s interest in arguments before the court, we are all still human and have a base line of respect for our adversaries.
5. Civility benefits your client
The practical reality is the vast majority of cases (especially class action cases, which consist of most of my firm’s cases) settle rather than proceed to trial. Understanding this reality should inform our approach from day one. In my experience, civility and professional courtesy consistently lead to earlier, more favorable settlements for clients than scorched earth tactics. When opposing counsel trust each other and communicate openly, settlement discussions are more productive and creative solutions emerge more readily. Conversely, when attorneys adopt unnecessarily adversarial approaches, they often create personal animosity that becomes an obstacle to settlement—even when both sides recognize that settlement serves their clients’ interests. The irony is that lawyers who pride themselves on being ‘tough’ through incivility often delay the inevitable settlement, rack up unnecessary fees, and achieve worse outcomes for their clients. Civility isn’t about being weak or compromising your client’s position—it’s about being strategic, professional, and ultimately more effective in achieving your client’s goals. The practices outlined above have consistently helped me maintain productive relationships with opposing counsel while zealously advocating for my clients. Civility and effective advocacy are not mutually exclusive—in fact, professional courtesy often makes us more effective advocates.
Terry Coates is the managing partner of Markovits, Stock, and DeMarco, LLC, the President-Elect of the Cincinnati Bar Association, and Executive Director of the Potter Stewart Inn of Court.