With the United States currently a polarized country politically and socially, the last place anyone should be uncivil is inside a courtroom. The subject of civility in litigation as part of fairness and conduct was one of the subjects discussed by a panel during the Nebraska State Bar Association’s annual conference Oct. 17-20 in LaVista.

“Civility isn’t complicated. It’s not rocket science,” said Judge Ryan C. Carson of the Ninth Judicial District (Buffalo and Hall Counties). “You might think to yourself, ‘Well, I’m a good person. I treat people with respect most of the time.’”

It may not seem like an issue, but with the decline of civility nationwide, it’s important to ensure it remains in the courtroom, Carson said.

“I have the benefit of being in an environment that requires people to behave, but that doesn’t mean they always do,” he said.

Civility is considered a character trait, simply the way people treat others, consisting of three elements – courtesy, dignity and kindness, Carson said. While there are no codes requiring attorneys to be decent people, there seems to be a way for judges to ensure it happens, he said.

“The Code of Judicial Conduct requires that judges act at all times with patience, dignity and courtesy, using pretty much the same terms,” he said. “What’s interesting is that the rules require judges mandate attorneys practicing in their court to practice with patience, dignity and courtesy.”

Steven Olsen of Simmons Olsen Law Firm and a member of the panel posed the question of what happens when competing attorneys may not treat each with respect, such as e-mails or text messages that appear abrasive during a dispute?

“My bailiff knows to send a standard order in those cases,” Carson said. “It mandates the attorneys speak by phone at a minimum, so they have to engage in personal control, not e-mail. Since implementing that practice, 95 percent of motions to compel are settled before the hearing. Bottom line is that you cannot get an effective message across through e-mail.

“You can’t start with pleasantries in an e-mail, you get right to the point, and it sometimes comes across as rude and abrasive. You pick up the phone and then it’s, ‘Hey Joe, how’s your family?’ It really breaks the ice and helps.”

Personal relationships support a positive environment, Olsen said. He and a fellow attorney were Eagle Scouts and used that to start conversations, he said.

While building relationships is important, what happens when an opposing counsel refuses to be courteous or civil? It’s important for attorneys to preplan how to handle working with difficult counsel, said James Paloucek, a partner with Paloucek, Herman and Wuhl in North Platte.

“What you do is make a record,” he said. “If it’s happening in a deposition, maintain your cool, make it clear to the opposing counsel that you’re making a record and will read into the official record. I know a lot of attorneys have taken to bringing a video recorder to depositions.”

Juries don’t appreciate bullies or rude people during trials, Paloucek said.

“Not just lawyers, but all parties,” he said. “I’m constantly reminded of Clarence Mock’s (a veteran Nebraska attorney) ‘words of wisdom,’ which are: There are facts in your case. There’s law in your case. But juries give money to people they like, and they don’t give money to people they don’t like,” he said.

While much of the panel focused discussion on fairness and civility in court, such as relationship building, attorney conduct is essential to a well-run court, said Gretchen McGill, an attorney with Dvorak Law Group in Omaha.

As part of a 2018 survey, 80 percent of respondents believed that gender-based inappropriate conduct, harassment, discrimination and bias occur in the Nebraska legal profession, McGill said.

“I’ve experienced this myself,” she said. “You can see the demographics in this room. We are a largely male-dominated profession. We are still a largely white-dominated profession. So, I think sometimes without keeping diversity and inclusion at the forefront of your mind, interactions can be strained.

“I was in court two weeks ago on a discovery dispute. The Court asked us to step outside and talk about it. It wasn’t a state dispute. I very much compare it to domestic law. After a few terse interactions, the attorney had backed me against the wall and was standing a foot away from my face, towering over me and yelling at me. And, I had to conclude to myself, would he be doing this to me if I were a man? No, he probably wouldn’t. I finally said, ‘Can you please step back?’ Then, it dawned on him how he made me feel as woman being backed up and yelling at my face. It goes to show that we have some room to grow.”

People attending the panel walked away with reminders on putting clients’ needs at the forefront, seeking civil solutions to issues and treating each other with respect by developing relationships and allyships.