By Stuart D. Colburn
This month marks the 25th anniversary of the Texas Lawyer’s Creed, so it seems fitting to take a moment or two to pause and reflect on what it means to be an attorney—how we work, interact with colleagues and clients, and uphold the rule of law. In a profession as honorable and noble as ours, it is imperative that we treat others with respect and courtesy. The following account will hopefully act as a reminder—and a prompt—to reaffirm your commitment to the Texas Lawyer’s Creed and our profession.
“We are not used to plaintiff and defense attorneys getting along,” said the bailiff to a shocked out-of-town attorney following a two-day civil trial. The bailiff, affable and well-liked as evidenced by the number of folks who admitted knowing him during voir dire, explained that most attorneys openly disparage each other—and not necessarily under their breath.
Some Texas litigators might assume this trial had taken place in a large city, where Rambo-litigation tactics have been common and are sometimes still practiced. But the setting for the trial was a small Hill Country hamlet. The bailiff’s comments were surprising because this small town should be a place where attorneys get along.
The good behavior of the lawyers in this case was not because the two attorneys were long-time friends. Indeed, we had never met before. We had our objections and our legal disagreements. However, we could make our points without hate or contempt. In fact, we played the part of small-town lawyers that even the small town did not recognize.
Others have criticized attorney behavior with far more insight and articulation than I. Some clients and jurors even expect bad behavior. The media portrayal of lawyers strengthens these perceptions, and our own commercials and billboards tell the world that successful lawyers win by intimidation and bully tactics.
Some—but not all—judges lament this behavior, as I discovered several years ago. I had presented motions to abate in two cases in two different cities. In each case, my client was paying benefits. The suit was filed to protect against a statute of limitations, but the parties were awaiting a ruling from the Texas Supreme Court that would fundamentally change the governing law and therefore the attorney’s preparation and discovery. My client would owe the other side’s attorney fees if we did not prevail. Therefore continuing discovery would have increased the legal expenses that my client might have been obligated to pay.
A judge in northern Central Texas listened to the lawyers’ arguments and asked opposing counsel what harm to his client would granting the request for abatement cause. My adversary (an exceptional attorney) didn’t answer the question and instead reiterated his argument. The seasoned judge calmly repeated his inquiry, only this time perhaps with more emphasis. I don’t remember the specifics of the non-answer, but I do remember the judge’s response: “Do you know the green-card rule here?” The other attorney admitted he was not familiar with that rule. Neither was I. The judge continued, “When a fellow attorney asks you for something and it does not hurt you or your client, you grant the request. Otherwise your green card to practice . . . [here] will be revoked. Do you understand?” My then-immediate feeling was elation that my arguments had won the day. Upon reflection, however, the more meaningful lesson—and the reason for the decision—is the admonishment to treat lawyers as lawyers should be treated.
A couple of months later, we appeared in another courtroom ready to make the same arguments in a different courthouse to a different judge. I arrived early to observe the judge’s style. The judge would decide early on in his ruling and then proceed to mock the “losing” lawyer until satisfied with the gallery’s response to his comedic routine. My opponent’s arguments won the day this time.
Divergent results in a courtroom, especially in different geographical locales, are not surprising and even expected. I examined the courtroom behavior, and the treatment of lawyers by the bench and other lawyers was the sharpest distinction.
I have often repeated the green-card lesson to young lawyers, believing such courtroom culture best matches the ideals of justice and professionalism. Although we do not always reach our ideal, it is far better to reach and fail than to settle for the low expectations of bad behavior.
My friend and former State Bar of Texas President Richard Pena recently returned from Turkey, where attorneys were being arrested for standing up for the rule of law. As we discussed his trip, I could not help but think that half a world away, our honorable profession struggles with professionalism.
Changing a culture takes determination, patience, and leadership. If change will come at all, leaders must envision it, judges must require it, lawyers who value professionalism must encourage it, and we all need to expect it.
A culture of professionalism at the bar is worthy of our aspirations. A small-town bailiff should not be surprised when litigants behave as they should.