Photo of Stephen McConnell

This week sees the annual ACI Drug and Medical Device Litigation get-together in New York.  Here’s a shameless plug: we will take part in a panel discussion on civility, diversity, and ethics.  We were assigned the dreaded end-of-conference Friday afternoon slot, so we are prepared to bellow over the din of retreating rollaboards.  Always a good time.  Rumor has it that some plaintiff lawyers are showing up.  The panel will devote a few minutes to discussing how nice it is to be nice. We might also devote a few minutes to challenging that assumption.

Not that we have anything against conviviality, especially this time of year.

Conviviality is good in itself, but it can also serve a purpose.  Recently we attended an MDL hearing. Part of the festivities included a cocktail party, complete with defense hacks, plaintiff lawyer pursuers of justice (in the form of wire transfers), and court staff. Talk about civility!  Several times we were treated to an odd bit of theater where a lawyer would snicker about how something weird and wonderful happened, but how it dare not yet be revealed.  Then, two or three sips later, that same lawyer would whisper out of a mouth corner something like, “Okay, here’s how it went down.”  Most of what we learned was silly or possibly wrong.  But we gathered at least one useful tidbit.

So it really can be nice to be nice.

But we also learned something from a colleague that made us feel not so nice.  One of our early law firm boss-hero-mentors, Jim Lyons of Skadden Arps, passed away earlier this year.  He was way too young. Lyons was one of the best litigators who walked the planet.  He was also one of the fiercest.  (We have worked with two lawyers named Lyons.  Fittingly, both were courageous, ferocious litigators.)  If you worked with Jim Lyons, odds are that the case was high-stakes and high-pressure.  And Jim had the highest standards.  If you were a young associate, Jim could be intimidating.  After you wrote something up, such as a memo or a brief, he would instruct you to come to his office.  Then he would interrogate you about your research. Did you look at A? Did you think of B? He would keep asking until you confessed that, No, you had not considered that. What followed was not pleasant. Jim let you know that your failure was not acceptable.  Go back and do it right.  And then the process would recycle.  After you turned in what you thought was a new and improved paper, the interrogation would resume.  Did you look at C?  Did you think of D?   Inevitably, Jim would name something you missed, and you felt awful.  Fix it! But here’s the thing: eventually the final product would be much, much better.   Moreover, eventually you would learn how to do thorough, creative research in the first place so that you could answer Jim’s questions the right way. Yes.  Yes.  Yes, damn it.  It’s all in there.  Jim made you a better lawyer.  He trained you. In fact, the other litigation partners insisted that young associates work with Jim first, so that associate work product would always be complete and reliable.

After surviving the Lyons meat-grinder, then practicing better law and climbing the ranks over the years, you entered into a different relationship with Jim.  Sure, he was still senior to you.   He was still a better lawyer than you were. But as he started to treat you more like a peer, you discovered that he was a kind, funny (though still driven) guy.   For some reason, we remember a prolonged debate between Jim and another partner about whether the best steaks ended up on plates in Kansas City or New York.  Lyons was from Missouri, but went to law school and began his career in NewYork.  Thus, his pronouncements on the subject were authoritative. Anyway, all of that terrifying of young associates was intentional, and the intention was honorable.  It was a way of protecting clients.  It was also a way of turning whiners into winners.

Nowadays, that tough love approach is hard to find in law firms.  We get the impression that associates now expect to be handled with kid gloves.  Maybe that is better.  But there is a price to all those participation trophies.  And now we will reluctantly admit to something that makes us feel ashamed.  There have been a few occasions when, after receiving an inferior draft, rather than tell the young lawyer how deficient the draft was, we uttered insincere thanks, shooed them on their way, and then closed the door and rewrote the document.  It is possible that we seethed a bit. Perhaps we also congratulated ourselves on our relentless niceness. But were we really being nice?  Isn’t it better to be honest?  Isn’t it better to help people be better, even if that requires a few awkward or even unpleasant moments?  We are still not half the lawyer and mentor that Lyons was.

It turns out that civility and niceness are more complicated than one might think.   Let’s agree that we want professionalism in our profession and will do our best to figure out what exactly that means, while being as decent to each other as we can.