Episode Transcript
Speaker 0 00:00:00 Welcome to the U S law essentials law and language podcast, the legal English podcast for non-native English speakers. That helps you improve your English, listening, improve your legal English vocabulary and build your knowledge of American legal culture.
Speaker 1 00:00:17 Oh the honor.
Speaker 2 00:00:21 Welcome to the U S Los Angeles law and language podcast. I'm Daniel Edelson
Speaker 3 00:00:27 And I'm Steven Horowitz.
Speaker 2 00:00:28 And today we continue our what's new in the legal news series. And today it's Steve's turn, Steve, what do you have for us?
Speaker 3 00:00:39 Uh, I, I have an article, um, from the, uh, ABA journal. It's the American bar association journal website. Um, lawyers in Illinois experienced this type of incivility. Most often new survey says,
Speaker 2 00:00:58 Oh, there's a lot to unpack there. Um, that word incivility, what does that mean?
Speaker 3 00:01:07 Incivility means essentially being rude or being inconsiderate or being mean in some way.
Speaker 2 00:01:16 Oh, hang on a second. This, this could be one, this could be a great opportunity for the Steven Horowitz synonym challenge. Okay. So far we have synonyms for instability. You said rude mean inconsiderate. How about, um, a discourteous
Speaker 3 00:01:35 Discourteous? Yep. That would work. Okay. Let me see if I can come up with another one for incivility. Um, obnoxious. Nice, nice. It's a little, uh, obnoxious, I think is a little stronger than incivility, but it could, it could fall within the boundaries of the meaning of incivility.
Speaker 2 00:01:52 I was going to say boarish, which is also stronger, I think.
Speaker 3 00:01:56 Yeah. Yeah. But that, that works. You can fit. Incivility is just a polite way to say boarish I think
Speaker 2 00:02:02 Good point. Good point. Hey, and, and civil is a, is a useful word because civil also has a legal English meaning doesn't it?
Speaker 3 00:02:12 Yeah. Oh yeah. It's got a couple of legal English meetings. I mean, there's, there's a civil lawsuit. There's civil law, there's civil procedure. Those are all, and they're all kind of different meanings yet. They're all connected by this word, civil, which is kind of like, uh, which is very amorphous, which can take on lots of different forums and meetings.
Speaker 2 00:02:36 Okay. But we're, we can tell from the context that in this headline, it's referring to incivility as the opposite of being civil. So it's the opposite of being polite. It's being impolite.
Speaker 3 00:02:51 Oh yeah. That's another synonym too. Oh yeah. Yeah, because if it said civil procedure, that's an area of law that has to do with the procedure of law. Um, if it was a civil lawsuit, that would mean that it's not a criminal case. It's a, it's a, somebody's suing somebody else for money. Um, which is a civil lawsuit. And then in other countries they make a D they have a division between civil law and criminal law.
Speaker 2 00:03:20 Right? Well, here we have a division also between, um, civil litigation and criminal litigation. And I think no matter where you are in the us as an attorney, you're supposed to be civil to your adversary as an attorney.
Speaker 3 00:03:39 Yeah. You are, and you really should be civil. Or at least, at least it's a, we think it's a good, um, approach generally. Although there's other lawyers who have been very successful being in civil, in their practice, you know, yelling and screaming and pushing people. Um, but anyway, so we've got incivility and, uh, in is a prefix that often is used to me, not so not civil. Um, so this is a, this is based on a survey, uh, that in Illinois that was done, uh, specifically with, uh, lawyers in, in the state of Illinois and Dan, do you know anything about Illinois what's, what's Illinois famous for?
Speaker 2 00:04:24 Well, I would say it's famous for Chicago and thought of the famous for Abraham Lincoln. What do you think of when you think of Illinois?
Speaker 3 00:04:35 Yeah, I think of Chicago. I think of, uh, lake Michigan is one of the, one of the five great lakes. Um, and yeah, Abraham Lincoln. I think those are the main, oh, the Mississippi river, I think goes along the west side of, of Illinois. Good point. Do I have that right? Am I wrong?
Speaker 2 00:04:57 I know there's a river there. Hey, um, also, also, if you play monopoly, there's the Illinois property.
Speaker 3 00:05:07 Ah, okay. And I do remember driving across the country when I was younger. And when I went through Illinois and I was heading up towards Chicago, I was heading north through the farm land. A lot of pig farms. It was, it was, uh, it was an old factory, uh, sensation not to be forgotten, meaning it was kind of stinky and smelly.
Speaker 2 00:05:30 Uh, hang on a second. I have to look up all factory. I'll get back to you in a second.
Speaker 3 00:05:34 It doesn't mean an old factory. It means all factory, which is a, a word that means having to do with the sense of smell.
Speaker 2 00:05:43 And one thing I guess we should point out is I don't think Illinois or Chicago, which is the, probably the most famous city in Illinois. I don't think Illinois is famous for having a discourteous lawyers. I think, I think New York and Florida are said to have a reputation for more aggressive lawyers, but, um, I'm not sure if that's necessarily true, but I don't think
Speaker 3 00:06:15 I could see that for New York. I'm surprised to hear Florida, but yes, Illinois in the Midwest and the Midwest generally has a reputation for being nicer and more friendly than, than say people from New York and the east coast.
Speaker 2 00:06:30 You know, it's funny you say that because I, you know, I think, I think generally speaking lawyers in New York are civil, but I do think Florida does have a reputation for particularly aggressive lawyers.
Speaker 3 00:06:45 Oh, okay. Maybe in a future episode, we could do a survey, our own survey of lawyers and see what we notice and what we figure out. And if anybody else has any experience out there with Florida lawyers versus New York lawyers versus any other lawyers, we would love to hear your thoughts and your perspectives, uh data-based or anecdotal or any other form.
Speaker 2 00:07:09 I believe they actually, there is something slightly confusing about this headline. The headline says, this is the most common type of incivility, but then the headline doesn't say what the reference to this is, but you can tell them the context, what it's trying to get at. Right.
Speaker 3 00:07:31 It's trying to say that there's there's incivility and that there's some sort of order of types of incivility. And there's one kind, that's the most common form of incivility, but yes, th this, this headline is I think what we would call clickbait,
Speaker 2 00:07:50 Right.
Speaker 3 00:07:52 Which is it's, it's phrased and written in a way that leaves a little bit of mystery and makes you want to click on it, which is why it's like bait, like fish bait. Um, uh, just to, just to see what this type of, you know, what the top form of incivility is. And I think I clicked on it partially for that reason. So, so call me a sucker.
Speaker 2 00:08:16 Okay. All right. Then Steve, uh, you know, something, I, I just closed the article and I don't recall what the, with the number one type of incivility is.
Speaker 3 00:08:28 Ah, okay. So they surveyed 20,000 lawyers in Illinois and out of those 1,508 responded. Um, and oh, and just in case you're interested, the, the link to this article will be in the show notes. Um, and that says the survey was conducted by the national center for principal leadership and research ethics at the university of Illinois at Urbana champagne for the Illinois Supreme court commission on professionalism. So this is, this is from a university from one of the state universities, and it's in connection with the Illinois Supreme court. So this is something, this isn't just some guy in a basement doing a survey. Okay. And then, um, of those 1,508 respondents, uh, 815 of them said they had experienced incivility in the prior six months. And here's the most frequent reported type of incivility, a sarcastic or condescending attitude reported by about 65% of those who experienced incivility in the last six months. Do you know what a sarcastic attitude is? Damn A really? You really don't know what it is, Dan. Yeah. Like, sure.
Speaker 2 00:09:48 Alright. So
Speaker 3 00:09:50 Congratulations. That was excellent acting. Um, that was dad and I are
Speaker 2 00:09:54 Acting is really good to really write your best, Steve.
Speaker 3 00:10:00 Yeah. Thanks so much, Dan. So that is Dan and I trying to perform, uh, what sarcasm.
Speaker 2 00:10:06 I was also trying to find the sending and you tried and you did your best.
Speaker 3 00:10:12 Thanks, but you're still acting now, aren't you? This is still a Very good actor. You're so good. You're such a good actor. Yeah.
Speaker 2 00:10:25 Yeah. I, well, I I'm, I'm really happy you brought this up because I, I am, I am, uh, a failed actor. That was my original
Speaker 3 00:10:34 That's right. Yeah, you do. And this longer sarcasm,
Speaker 2 00:10:41 This is just me being miserable. All right. So Steve sarcasm is actually not, not such an easy word to explain. Can you explain it? Yeah.
Speaker 3 00:10:50 I mean, I guess the simplest explanation is it's saying the opposite of what you mean, but it usually is done in an attempt to be rude or, or humorous, I guess. Um, but it can definitely come off rude. And then condescending is a word that means talking down to somebody talking as if you are a higher in status than the other person, whether that's a boss to an employee or a parent to a child. Um, so sarcasm and condescension kinda can overlap.
Speaker 2 00:11:23 So if condescension and sarcasm are the most common types of incivility, what's underneath that, what comes next?
Speaker 3 00:11:33 Let's see the next one is misrepresenting or stretching the facts or negotiating in bad faith, which is at about 63%. So not far behind the sarcastic and condescending comments. Um,
Speaker 2 00:11:47 That's pretty serious.
Speaker 3 00:11:49 Yeah. Misrepresenting. I mean, that could be that again, that could be a wide range of things. Negotiating in bad faith is also very subjective, you know, asking for something, even when, you know, you don't have the right to ask for it, but that could be very subjective. Um, let's see, the next one, uh, inflammatory writings in correspondence, memos briefs or motions, inflammatory writings, again, a very subjective term, right? That's like saying that's just, that's exaggerating in writing or, or accusing the other side of, of extreme types of behaviors.
Speaker 2 00:12:33 I'm thinking about how inflammatory and good faith can be related because if you accuse someone of acting in bad faith, so the person's not being completely honest and accusation of bad faith itself is inflammatory because you're going to inflame your adversary. You're going to get your adversary really angry if they think that your accusation of bad faith is based.
Speaker 3 00:13:05 Yeah. So they all go hand in hand and, and, uh, I mean, I guess this survey is really about people's perceptions of the other side. So
Speaker 2 00:13:16 I think that's a really good point because I, I imagine there's times when we assume someone else is acting in bad faith and sometimes we're right, but I suppose there's times when we, we just might be wrong and we might not realize that the other side might think we're acting in bad faith. Sure, sure.
Speaker 3 00:13:38 So it's a very, it's very subjective. It's very, it's based on where you're sitting and what's going on in your mind at the time. Um, here's another category playing hard ball, such as not agreeing to reasonable requests for extension.
Speaker 2 00:13:53 That's a really good one. And that's a good sports analogy. W what is, what is playing hardball? Meaning
Speaker 3 00:13:59 It's the opposite would be playing softball.
Speaker 2 00:14:04 Baseball.
Speaker 3 00:14:05 Hardball is a reference to baseball. And, um, I guess when you're playing with a hard ball, which is the ball you use for baseball versus the ball you use for softball, um, it it's, it's more serious and you can get hurt. Uh, so playing hard ball means being tough, not being flexible. Uh, so often, um, just in, in, uh, in the general proceedings, in a, in a court case, you might ask the other side for an extension and say, Hey, we need another, um, you know, seven days, 30 days to do this. And the other side might say, you know what, no, sorry, not gonna do it. We're just gonna make your life difficult. Um, and, and, you know, there's reasons for doing that. If you're advocating for your client, you might say, yeah, we don't want to do that. Um,
Speaker 2 00:14:54 Yeah, it's interesting. But you know, again, this does run up against professional rules. So reasonable requests for extensions should be, should be agreed to, of course, there could be times when you think that the request for the extension just isn't reasonable and that you have to play hardball. And I think that's part of the lawyer's responsibility to think seriously about, well, why am I declining this request for an extension and do I have a professional basis for doing so?
Speaker 3 00:15:23 Yeah. And also lawyers have reputations in their community. You know, you tend to see the same lawyers. Uh, you tend to see the same judges, so that can, that can work against you. You might think you're advocating for your client, but if you're being in the civil about it, or if the other lawyers and the judges think you're being as, that can also hurt your client, okay, are you ready for another category Indiscriminate or a frivolous use pleadings or motions? So that's in about 46%. So this one feels a little bit more objective indiscriminate means, um, without discriminating, without using any judgment or, or basis for your decision, just arbitrarily, um, filing motions or pleadings or drafts, um, just to make work for the other side, or just to cause stress to the other side or to threaten the other side, um, and frivolous, you know, the meaning of frivolous. Damn
Speaker 2 00:16:32 I do. In fact, it, it, it's, it's, it's, it's a really good example of, of, uh, English term it's, but it's also a term of art for in, in legal English,
Speaker 3 00:16:47 Right? Frivolous often just in regular plain English means silly frivolity, Right. It's being silly, but in the context of law, it means unnecessary or gratuitous,
Speaker 2 00:17:01 Or it can mean baseless. So lacking a foundation in law, or fact, and that type of practice really can get an attorney in trouble. If you file a frivolous lawsuit, you could face significant sanctions from, from the court.
Speaker 3 00:17:23 Yeah. And, and that is a strategy that of course lawyers may, may feel tempted to use. And I think frivolous tends to go together with the word lawsuit a lot. Um, when we're talking about law, if you hear frivolous, it's often followed by the word lawsuit, oh, they filed a frivolous lawsuit. Or your honor, this is a frivolous lawsuit. We don't think we should have to defend this. Um, and, uh, yeah, I mean, it's, it's suing somebody just to, um, perhaps just to try to scare them, even though there's no basis. Um, are you interested in another category?
Speaker 2 00:18:00 Absolutely.
Speaker 3 00:18:01 Inappropriate interruptions of others, such as clients, colleagues, counsels, judges, and witnesses. That's what about 41%? So interrupting. Sorry. I was interrupting you, but was my interruption inappropriate?
Speaker 2 00:18:20 I, I can't tell, um, let me know what you are going to say then if I think it was more important from what then when I was going to say, I would say it's an inappropriate interruption. So go ahead. What were you gonna say?
Speaker 3 00:18:30 Well, I think you're being condescending and sarcastic right now, and I think your comments are frivolous. So I'm going to play hardball with you, Dan.
Speaker 2 00:18:38 Uh, I'll take the high road and say, I'll just assume that you're acting in good faith. And why don't you continue? Do you have anything else on your list? Assuming you're able to read?
Speaker 3 00:18:46 Yes. Okay. The next one at 22% inappropriate language or comments in letters or email, I don't know exactly what that, I mean, I can picture, I would say it could mean using bad words or, or making personal, maybe it's making personal comments like attacking somebody personally, like telling the lawyer you're a bad lawyer or you're, you're an awful person in some way, because then the next category is swearing, verbal abuse, verbal abuse or belittling language, and swearing is using bad words. Four letter words, for example, verbal abuse. Again, this seems to overlap with inappropriate language or comments and belittling is sarcastic or condescending. So it seems to overlap with that category as well. Um,
Speaker 2 00:19:42 Yeah. And if you look on, on YouTube, unfortunately there's all these examples of really horrendous lawyer conduct. So for example, during depositions, the lawyer suddenly might get angry and start cursing. Um, so there's, unfortunately, there's, there's all these examples where lawyers just get really hot tempered or maybe they do it deliberately because they're trying to intimidate the other side, but you're, you're not allowed to use that kind of insulting language to try and gain an advantage for your client. Oh,
Speaker 3 00:20:20 Wow. Where would somebody, what terms would somebody search to find these videos? I do YouTube.
Speaker 2 00:20:27 I, I have no idea. I have no idea. I don't know. I don't know or use these words.
Speaker 3 00:20:32 And then the next couple of categories are also related, uh, what is inappropriate comments about age or experience? Another one is sexist comments and sexist comments means comments that have to do with gender that have to do with being a male or a female. And I'm guessing these would typically fall into the category of males, making comments, uh, to females, but I, I could be wrong. And then the last one is racially or culturally insensitive comments.
Speaker 2 00:21:08 So Steve, you practice law in, uh, uh, in New York city for a number of years and I'm not being condescending. Did you have any
Speaker 3 00:21:18 It just one and a half counters as a number of,
Speaker 2 00:21:23 Well,
Speaker 3 00:21:25 Number of years.
Speaker 2 00:21:28 Oh, okay. I didn't know whether you could count that high. So I was just trying to make it easy for
Speaker 3 00:21:32 You.
Speaker 2 00:21:35 No, no. I was being condescending. Um, in, in your experience practicing, did you see examples of this kind of incivility?
Speaker 3 00:21:47 I would say, no, I didn't really see this, but I worked in the bankruptcy world for a little while for awhile. And, um, there were stories of a famous bankruptcy lawyer, um, who was a very, it was a very successful bankruptcy lawyer and very respected bankruptcy lawyer. Um, a guy named Chaim Fort gang, uh, and his, one of the famous stories I heard about him. Uh, and I think it's, you could look it up. I think it's, uh, it's public info basically at this point, um, was that, and bankruptcy by the way is a lot of it's fighting over. Um, it's fighting over a pool of assets, so it's like a pie that you have to divide up. So somebody is going to get more and somebody's going to get less. So a lot of times it's lawyers being in a room and arguing and maybe yelling at each other. So apparently one time, this very well-known respected lawyer, um, got so angry that he threw a bagel at another lawyer.
Speaker 2 00:22:54 Well, at least he didn't throw the, the, you know, the knife that you use to cut the bagel that that would be.
Speaker 3 00:22:59 And I don't know if there was cream cheese on the bagel or not.
Speaker 2 00:23:04 Maybe he thought he was hungry and needed to get his blood sugar up.
Speaker 3 00:23:08 I think it was probably a bagel without any cream cheese or butter or anything.
Speaker 2 00:23:12 But if it was, it would be dangerous
Speaker 3 00:23:16 Stale, I guess it can be a lot harder than that would be playing hardball. Yeah. Dan, have you ever gotten hot tempered or been in civil in any way?
Speaker 2 00:23:26 I hope not, but of course other people might have different opinions. There, there was one time I was in a mediation and I, client was really sad and I could tell that the client was actually close to tears and I didn't want the client to cry. And so what I did was I raised my voice and I just sort of try to give, I, I, yeah, I raised my voice. I sort of shouted a little bit and I, I conveyed a large sense of anger. And what I was hoping to do is create this sort of cathartic experience. So the client would see me getting upset. So that would enable the client not to get upset.
Speaker 3 00:24:14 Yeah. So I could, I could see that being, and I can see other lawyers doing that and you just, you know, you don't know if somebody's acting or not, but I could see that being an effective strategy. Do you feel like it had the, the effect that you wanted?
Speaker 2 00:24:29 It really helped my client to calm down and then we just, and then we just moved on. Although looking back, maybe I shouldn't have raised my raise my voice.
Speaker 3 00:24:41 I think, I think maybe you should, in those situations, I think it's a lawyer's job in certain situations to do that. So, uh, Dan, you know, I was thinking of this was not in my own practice, but in my role as a client, when, when we were, um, buying an apartment and we were doing the closing, um, and at the closing, the, both of the lawyers are there and you've got to go through everything. And there was a problem where the, the, the seller, um, needed to stay in the apartment an extra week. And we said, okay, that's fine. And then it came time to hand over the key. Um, and, and I was supposed to, and this, the seller was supposed to give me the key, but she needed to stay in the apartment another week. And I said, well, I'll just go and make a copy of the key and give it back to you.
Speaker 3 00:25:34 And she was an older woman and, and for her, that was very difficult, I guess, to give up the key. And she just, all of a sudden this very nice old lady sort of exploded and said, no, no, no, no. I'm not going to do that. No, no, no, no, no. And it was just, I couldn't even talk or argue with her, but then her lawyer, rather than saying, um, yes, you have to give over the key there. You're you're, you know, once you sign this, they've bought the apartment. It's it's their apartment, their lawyer, or the woman's lawyer started yelling and screaming and banging on the table going no, no, no, no, no. She doesn't. Doesn't want to give the key. Doesn't have to give the key. No, no, no, no, no, no, no what to do. But my lawyer, um, uh, properly then started writing up an agreement cause I said, well, maybe we can figure something else out. And my lawyer, rather than arguing or making a big stink and arguing back, um, rather than being inflammatory, my lawyer just started writing out an agreement by hand, um, of how this was going to get resolved. And I was always very impressed by how calm and civil he was the face of clear incivility from the other lawyer and the other client and the client, uh, on the other side,
Speaker 2 00:26:53 That's a great example. And maybe, uh, something else that could go hand in hand with this survey is examples of professionalism and civility, where an attorney keeps advocating for his client keeps trying to protect the client's interests, but doesn't resort to this same kind of incivility. And I think it's a really good idea that Illinois and its Supreme court is taking this type of professionalism really seriously. And I'd be curious to see what kind of steps they take to encourage civility among the,
Speaker 3 00:27:31 Yeah, I guess if nothing else, I guess maybe the main purpose of the survey is just to draw attention to the fact that this is a thing and that this is something to be aware of and it, and it gives a certain seriousness to it.
Speaker 2 00:27:46 Okay. Well, without sarcasm, Steve, I can say this was a really interesting article and I enjoy talking to you about
Speaker 3 00:27:51 Thanks Dan. Thanks a lot. That was sarcasm again. I had a great time talking about it too. And you were, you were actually very civil with,
Speaker 2 00:28:03 I try. I try. I can't, I can't promise things going forward though, but anyways, can you stay essential?
Speaker 3 00:28:10 Okay. Stay essential. And if you ever want to have a civil discussion about any of this episode or other episodes, make sure to look for, for us on the U S law essentials Facebook group or the U S law Central's LinkedIn group. And if you ever have any suggestions or other comments, you can always send them by email to Daniel at us law, centrals.com.
