Every day, we read stories about lawyers being uncivil and doing uncivil things. With high financial stakes, demanding clients and looming deadlines, it’s easy to let words or actions slip under pressure.
Don’t make the mistake that a terse courtroom comment or a little squabbling is part of zealous advocacy for your client. It might feel like a way of blowing off steam, but it’s making the end-result harder.
Panter: The first thing I want to say to you, face-to-face and on the record, is I was completely uncivil in cases that you and I had as lawyers, and I just want to put that on the table.
Purcell: Most likely you were responding to my incivility.
Panter: Let’s think about this a second. Why did that happen?
Purcell: I think a part of it was youth and what goes along with that. I think that another component of it is that both of us were cut from the same cloth in the sense that we are competitive people.
We are aggressive advocates for our clients and, sometimes, youth and the advocacy that we want to project for our client can produce exactly the result that we saw in our depositions and court hearings.
Panter: What do you think you and I could have done differently that would have broken that cycle?
Purcell: One of the things that I find helps is getting to know the attorney beyond just the court hearings or the deposition. … When you have a relationship with somebody, where they’re not just your opponent, … you can still be the aggressive advocate. You can still be the lawyer who’s looking out for the interest of your client in a zealous, aggressive manner — but you don’t cross that line to incivility.
Because you know, at the end of the day, you’re just dealing with another lawyer who’s trying to do the best they can to advocate for clients.
Panter: How have you gotten to that point with some of your opponents?
Purcell: It can be something as simple as small talk before or after a deposition. … Find a common ground. We’re all in this together.
The litigation community, I find, the older I get the smaller it gets. For some reason you see the same faces. You’re going to be confronted with the same people. If you get an opportunity to just have some idle chit-chat with them, I think that’s where it starts.
Panter: Can you give me a story where you were able to do that?
Purcell: The best story that I have is the one that I share with you, to be honest. … What’s interesting about our story is that the amount of time that lapsed from when we were opponents in litigation and when we were able to bridge that gap; of knowing you as somebody other than that opponent.
And it came when I was in court and I was waiting for a very heated, contested motion with an opponent and out on the bench strolled you.
I had no idea you had been appointed to the bench, and I just remember my jaw dropping.
I felt a thin film of sweat form on my forehead, thinking “I now have this contested motion, in front of this judge who as a lawyer I battled with for years.”
I have a good idea of how this motion is going to turn out, and when I approached the bench, you looked at me and I looked at you.
We were thinking the same thing, but there was a respect that you knew I had for you, and hope that respect was mutual.
I think from that point forward, we were able to then break that barrier and really get to know each other as people, beyond lawyers.
Panter: I remember us being in chambers, and we just looked at each other and started laughing and thinking, “How stupid were we?”
What a waste of time and energy just not accomplishing anything, not helping our clients, driving ourselves crazy.
And that moment we were both laughing is one of the really cherished moments of my career.
Purcell: It was a great moment.
I think in the final analysis, with some years under my belt in this highly competitive business that we’re in … it’s a very, very stressful way to earn a living being a litigator in this arena.
Enormously stressful. I have asked myself along the way, why add stress by creating unnecessary friction, by creating not only an opponent, but someone with whom you are personally adverse?
All that does is create stress. It prevents you from working with your opponent, and we all have to work together — I mean, we’re all confronted with similar stresses.
Panter: Do you have any other thoughts or advice for lawyers to break the cycle, to get more cooperative?
Purcell: It’s a mindset. You have to make an effort. It’s very easy just to do what you have to do and leave, and not try to get some rapport with your opponent.
It’s not anything other than a decision on your part to say, “This is the approach I am going to take.” I think it’s as simple as that.
Panter: I have enormous respect for you, and part of the thing that I think drove me was fear. I think I was afraid you were going to beat me. You are a really tough and great lawyer, and I think that some of this incivility is fueled by fear.
In terms of what your life is like, I think people should know because we don’t know our opponents, we don’t know what their lives are like, we don’t know what they’re going through. Can you share that with us just a little bit?
Purcell: Sure. My firstborn son Sean, as we now know, has a condition, Angelman syndrome. As it turns out, it’s a very rare genetic disorder.
Panter: One out of something like 20,000.
Purcell: Yeah, I mean it’s very, very rare. There are very profound consequences in terms of development, cogitative abilities, motor abilities, and Sean is very much a lifelong project for my wife and me.
I think that the thing, as it relates to what we’re discussing, … my wife and I went through a very, very long journey before we eventually found a diagnosis, and that journey was a very, very difficult one. Both for myself and principally for my wife, who is my hero.
Purcell: Sean is 25 now, and in 25 years you can count the number of days she has slept through the night on one hand. She is up with him every single night.
I have to function at work and I could not do that without her. Even with her doing the heavy-rowing, in that regard, the stress of that, of not knowing, of finding out, but it just really changed everything. … I still had all of these responsibilities at work and I still had to put in all the enormous hours that lawyers have to.
And it makes me wonder when I sit across the table from a young lawyer … maybe, they’re just starting a family. Maybe it’s not a Sean in their life, but it’s something else. It’s a parent who has suddenly gotten ill. Pick your issue, it could be anything. They could be carrying around that baggage.
That’s another reason to keep your work at a civil level, because you have absolutely no idea what’s going on under the surface. They could be dealing with enormous tragedy. They could be carrying something enormously difficult and they still have to go through the day-to-day stress of work.
My experience with Sean has given me empathy. I think it filled a void. It gave me an awareness, especially being in the special-needs community for 25 years, of what people are dealing with and the enormous burdens they can have. Even though Sean is just a great gift to me, he’s my son, I love him, but it is a day-to-day struggle. Every day is a struggle and that’s just the fact of it. …
Panter: Do you think it affects how you view your cases?
Purcell: I think it’s double-edged. I think being around a special-needs community and seeing people with profound disabilities has made me more compassionate and more understanding with the personal-injury aspects of our job.
Deposing people who have sustained injuries which have affected their life. I think it made me a little bit more empathetic, a little bit more compassionate. I think people who normally said I could probably use a little bit more, I think it’s done that.
On the other hand, … on occasion when I’m hearing a particular plaintiff talk about his tale of woe, I think to myself, “You think you’re disabled? Really? I will show you what disabled looks like, and it doesn’t look like you.” It cuts both ways. … I hope it’s made me more compassionate, but it’s also made me a little bit more jaded, too, when I hear some of the complaints coming out of the mouths of the plaintiffs I’ve opposed.
Panter: Any other thoughts?
Purcell: I would like to see, and I think I have seen in the recent past, the lawyers getting along better. I think that’s where it is trending. I think it is a byproduct of how this business has become much more stressful. Over the trajectory of the almost 30 years I’ve been doing it, I think this job is becoming more stressful by the year. That’s not just me. That’s in talking with other lawyers that are involved in this thing and on both sides.
We need each other to do this job in a manner that doesn’t end up grinding us to nothing.