by Kenneth P. Nolan

We're not so bad. At least not compared to mass murderers, horse thieves and CEOs. But let's be honest, some of us lawyers are not very nice people. And even though most I have met in the past 25 years of practice are decent, honest, caring individuals, I live in Brooklyn where almost every day another judge has to resign or another prominent attorney does the perp walk. As my fellow attorney Jack Maguire told me after my photo appeared in a legal journal. "You're the first guy I know whose picture was on the front page of a newspaper who wasn't indicted."

You say it's only a public relations problem, but deep in your heart you know it's much more. Maybe it's the work we do, maybe it's the hired gun thing, maybe it's that we all want to be on the front cover of American Lawyer making bazillions each year, but maybe, probably, it's plain old-fashioned greed. And all the good PR in the world won't change the opinions of the riders on the R train when page 5 of The Daily News continually reads: "Lawyer indicted for stealing little old lady's life savings."

Yes, I know, we do good. We really and truly do--pro bono for criminals on death row, aiding battered women, helping the helpless. Just recently, The New York Times profiled a retired corporate lawyer, Bill Keating who volunteers to assist the terminally ill in their very last days. Yes, a lawyer and a very good man. And we're involved in the community--president of the neighborhood civic association, active in the parish, coach of tee ball and soccer, on the board of the local United Way and all the while handling a full-time practice, which you know is more than just a job with the pressures of clients, bills to pay, judges to satisfy and new business to generate.

It's unfair, of course. The few rotten apples spoiling the ever-growing and delicious orchard. It's true that the overwhelming majority of our profession have integrity, intelligence and compassion. And millions of us handle estate matters without taking an extra penny and routinely interrupt our Sunday afternoons watching the Bears lose to respond to the hysterical client going through a divorce.

But it's time to clean up our act a bit. Time to change our attitude, our behavior, our standards. Time to be courteous, reasonable and charitable. Hey, I'm no dope. It won't be easy and may never happen, but we know it has to get done. And the first small step is to admit a problem, realize that the public doesn't trust us, doesn't like us. It's more than just another lame lawyer joke, it a general perception that we cut corners, we lie, we steal and we'll do anything for a quick buck. And perception, of course, is reality.

Can an attorney accused of a crime or of malpractice actually win a jury trial? Lawyers and insurers (yes that's how bad we are) just can't win. Take the plea, settle the case cause you know you're going down. Even with the Enrons, the Tycos, the stock option mumbo-jumbo, the lavish corporate parties and the disappearing 401Ks, our reputation is much worse than the corporate pirates. Those having a cold one in Farrells Bar all know lawyers, yet the only executive they ever shook hands with was their union pres.

By this time, you're thinking who is this mutt telling me I'm bad, that I have to change. Yeah, I hate those CLE programs on civility too and I'm guilty, probably more than you. My behavior in and out of the courtroom has been, on occasion, reprehensible. It will be easier for you to change than me. Because of some deep psychological scar, I have lived all my life in New York City so my idea of civility is a bit different than Mark Neubauer who grew up eating cheese in Wisconsin. For instance in my Brooklyn youth, patience was never thought to be a virtue, everything was done at break-neck speed including eating dinner. And if I skinned my knee or suffered some injustice in school or playing ball and I dared complain, the usual response from my mother was "If you want sympathy, look it up in the dictionary." And she wasn't kidding.

Just the other day, I was retrieving my cell phone in Federal Court in Manhattan and there was a line, so you waited to hand the security officer a metal number to retrieve the phone. "Next" the officer would say and you would exchange the number for the phone. "Next," "Next," was the mantra until some poor slob steps up and says I lost my number. Without looking up, the officer says "Next" as if the guy wasn't there. I and all the other New York lawyers thought this hilarious. Yes, it will be very hard.

We're all guilty in some way. So are all the other occupations--CPAs, doctors, even priests. We're all sinners, flawed people, trying to support a family, living in this "vale of tears". Recent articles about the travel industry detail the worsening of the public's manners. Passenger rudeness often escalates into physical violence. Vile language is common and public even among teenage girls (mine included). Cell phone abuse is so rampant on commuter trains that there is a need for designated quiet zones. And road rage is particularly threatening since, as George Carlin observed, there are only two categories of drivers: lunatics or idiots.

But our profession is a bit different. We're lawyers, a label we should wear with pride, but too often we whisper it when we meet someone new at a cocktail party. "He's a lawyer, but a good guy," is one introduction that I initially thought was nice.

In our office, interns from all over the globe write and ask in they can spend a few months learning American law practice. Of course we oblige so they come from Germany, Brazil, Thailand, England, France. I hope they leave our office with the same awe that they begin. But on occasion, they will see behavior at a deposition or in court that they don't understand, that would never happen in their country and usually the act is one of petulance, rudeness. I try to explain the aberration, but it just doesn't register and, if by chance, they see a judge act up, they shake their head in bewilderment.

We all know the difference between right and wrong but we still act like spoiled brats on occasion. And there's no reason for it. We're adults, at least most of us anyway. There will always be those who will steal, lie and take bribes. Most will lose their licenses, disgrace themselves and their families and spend time in some country club jail. A law degree does not come with a halo. The same temptations exist, the lure of the street remains whether you were kicked out of school in 9th grade or was editor in chief of the law review at Yale.

Yet certain behavior patterns can and should be changed. We should teach them in law schools, as part of our associate training, by our behavior in and out of the courtroom. We must encourage a change in attitude from pit bull litigation tactics to the golden retriever variety with an occasional bark or two. Of course we learned this in first grade, but let's just review them one more time, since we all know someone down the hall who has forgotten them.

Be reasonable. And in all aspects of our practice. Don't you just hate the morons who won't give you an extension to respond to some motion even when it makes no difference. Who serve papers on Friday at 6 pm, whose depositions strategy is to object, disrupt and turn a three hour depo into a three day ordeal. Whose condescending tone drips with "I'm a partner and you're not" attitude. Usually these guys were the last to be chosen in touch football games, the ones who sat in the stands in high school as their basketball team was blown out, chanting at the other team, "Ho, ho, hey, hey, you're gonna work for me some day." Aggressive and obnoxious litigation is their chance to get even.

In small town practice, everyone knows each other and courtesies abound since reputation travels quickly and trust is paramount. If you refuse a reasonable request for an adjournment or try to win based on some flimsy technicality, all know including the judges who usually take a dim view of such behavior. But in a large city, there's a new face on the other side who wants to test you, who's looking to impress the client, the senior partner, to make a name. And that leads to a chorus of no, no, no whenever you make a request. Soon there's motion practice over the silliest matters, mountains of paper accusing each other of the most vile activity--unnecessary, unproductive and just plain stupid. Usually the judge puts a stop to such foolishness, but not until days are wasted, dance recitals missed, take-out pizza eaten cold. Bad feelings abound, client bills are enormous and your position in the litigation hasn't changed since you were retained.

In settlement negotiations, too much posturing is counterproductive. How many times have you been prepared to discuss resolution when the other side demands the gross national product of Norway. You know they're not serious, but believe that's how the game is played. But we must realize that it's not a game, but real life. Sure, you have to posture a bit, negotiation is a give-and-take, but realistic positions result in settlement. Be direct. If you can't settle the case at this time or for a reasonable amount, tell the other side. I've seen too many attorneys rant that they'll "try the case" if the million dollars isn't offered "right now" only back down time and again and settle for 2 bucks when the jury is selected.

When I was just starting out, I litigated a malpractice case where my client was hit by a car and, while in the hospital, was intubated improperly which caused his death. Since he was a coma upon admittance, the only question was causation, did the malpractice hasten his inevitable death or prevent him from recovering. A case to settle, right. "No pay," was the response. Being young, I actually believed this and went to trial. After jury selection the elderly judge gently asked, "Can't you guys settle?" I interjected, "Judge they don't want to pay…" "Will you take 100?" "What did you say," was my response. "How about 200…" Settled 15 minutes later when it should have been resolved a year earlier.

"I'm a lawyer". Recently there was a serious and upsetting event at my 8th grade daughter's school which called for a meeting of school administrators and parents. On two occasions, parents prefaced their remarks by proclaiming that they were lawyers and proceeded to speak in generally rude and condescending terms to such an extent that it affected the relationship with their children's classmates.

You are not superqualified to dispense wisdom on all topics simply because you passed the bar. Yes, a legal education is extremely valuable and I recommend it to all. This knowledge along with our experience with people and the judicial system make us almost uniquely qualified to add intelligence and maturity to almost every situation. But drop the arrogance, the know-it-all attitude, the "if I don't get my way, I'll sue your butt" swagger.

Listen, keep your mouth shut for awhile. Others, whether sanitation workers or moms, have insight as well. Be humble, you're really not that smart or eloquent. Weigh the remarks of others and speak in measured tones. Command respect by the content of your words rather than the volume. It's not that difficult, it just takes discipline and restraint. You'll be surprised how much more you will be admired.

Admit Mistakes. The Japanese tradition of apologizing for mistakes is one to be emulated. Too often our advice muzzles our clients so that silence is perceived as indifference or callousness. This corporate position is often in response to "the don't admit error, it can be used against you" philosophy. But it leads to anger, resentment and trials.

Years ago aviation insurers treated the families of plane tragedies as adversaries-don't help em, don't give em nothin'…no funeral expenses, no transportation to the site, no personal assistance or apology. This obviously led to rage and resentment, hardened litigation positions and fruitless negotiations. Recently, however, the same insurers have learned that not only were these callous actions inhumane, but costly-lengthy litigation, sharp elbow tactics and cases that won't go away. And now they go out of their way to assist, assigning an employee to each family, helping with financial concerns, arranging for therapy and even choosing a head stone where the family could not. Instead of anger and revenge, I hear "but I'm not really mad at them," when the discussion turns to legal action.

Even doctors have learned to admit wrongs on occasion. The "defend and deny" attitude of insurers and malpractice attorneys is cracking a bit with some encouraging disclosure and contrition. This often risky strategy can temper the anger of the victim and her family. We know the policy of hide the facts and prevent disclosure rarely succeeds especially when every sister-in-law has a law degree.

It's our turn. To explain away every hiccup is counterproductive. The failure to acknowledge that a previous decision hurts your case is foolish. Tell the judge about it and then distinguish it if you can. Be upfront. Don't pretend your case is bulletproof. It's not. And don't forget to tell your client the bad as well as good news. Eventually you have to, sooner is better, gently of course. Honesty as to weakness will save you heartache later especially when the irate response will be, "You told me it was a slam dunk. Whaddya mean we could lose!"

Of course we all screw up-whether it's overlooking precedent, forgetting to provide timely documentation, whatever. Just face it, tell whomever and get on with the case. Most times, it's not fatal and you know eventually your adversary will also err. Hide the hubris in your pocket.

Don't take advantage. Sometimes, just sometimes, your adversary is a bit inexperienced. It's easy to score a point or two. But young lawyers age, become wise and don't forget. So whether it's a deposition or conference, remember when you were young and foolish. You never forget the small moments of kindness, like when I was being screamed at by a biased judge and the old lawyer slipped me a note to ask the judge to recuse herself.

Life is hard and too short. Bad manners whether in court or on the street are just not nice. And bad business.