PBN: Earlier this year, in a speech before the Rhode Island Bar Association, you discussed ethics and civility in the courtroom. But isn’t there a demand for pit-bull lawyers? How does that balance with the idea of civility?
MERTEN: I think the response when someone says they want a pit-bull lawyer is to find out what they mean. I think it’s a perception that clients want that and it’s a perception that lawyers have that clients want that, but I don’t think it’s what clients want. I think they want someone who has resolve and commitment to their cause – someone who is not going to change their mind on the eve of the trial that the case has to be settled. They don’t want someone who is going to be obstreperous for the sake of being obstreperous. They don’t want someone who is going to run up fees, which is one of the key dynamics of civility in the long-run. … You have to find out what [clients] want, and then it is a process of education. … What’s the best way to achieve your goals? One conversation I have had with clients since speaking at that meeting is to put the question in a different context: “You hire people all the time for your business. Would you want to hire the kind of person you think you want to hire as a lawyer at your company internally?” And the answer to that is an automatic no.
PBN: What was the reaction to your speech?
MERTEN: It touched a nerve, and I was surprised. It is something that has been talked about in the profession for a long time. I got the sense, in terms of the reaction I got from clients and lawyers, that it’s something that’s weighing on people’s minds here. They don’t want to see the practice decline here like it has nationally. … I became a lawyer because I wanted to be a professional. When you denigrate the conduct that makes you a professional, you become a commodity – and that impacts not only how you are perceived but how the client is willing to pay you and treat you and how judges are going to treat you.
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PBN: It would seem individual judges would respond differently to different approaches.
MERTEN: Some judges may tolerate those kinds of uncivil tactics more than others, but none of them appreciate it. The quickest way to lose a judge’s attention is to get into a spitting contest with your opponent. They can’t abide them.
PBN: Do people see lawyers on TV and think that’s an approach that would work for them?
MERTEN: If you look at the research, one of the causes identified in terms of the decline of civility is the portrayal of lawyers in the media. You look at movies and TV shows about them … there are all sorts of outrageous tactics.
PBN: Is the decline of civility in courtrooms more of a question here in Rhode Island?
MERTEN: It’s less of a question here. We’ve been spared a lot of the nasty conduct that you see in New York, Boston or Chicago. The reason for that is it’s a fairly small bar association and you only have a few judges. Everyone knows one another. I think the reason people are reacting to the issue of civility is because we have something special here and we don’t want to see it threatened.
PBN: As for companies being subjected to litigation, is there any advice you might have to help them stay out of court? What makes some companies vulnerable to litigation?
MERTEN: The harsh answer to that, for a large number of lawsuits, is no. The United States has become such a litigious society that you can’t guess where the next lawsuit is coming from, or where the next legal theory is going to arise. It’s like teaching a child sports. Watch the fundamentals. If you watch the fundamentals of your business, you decrease your risk to labor disputes. It’s that basic. But it’s also what makes it difficult, because when you are conducting business every day, that kind of thing is the hardest thing to do.
PBN: Why does a consumer decide to sue a business?
MERTEN: Sometimes consumers are legitimately injured. The other thing that plays into that, and customer relations studies show this, is that initial response. Do you listen and respond to the consumer’s concern? That impacts whether they will go forward. You can avoid a lot of disputes if you focus on the problem initially. There’s a window before things denigrate, where if people listen and respond they might avoid
conflict.
PBN: There’s been a push for mediation recently. What do you think of that?
MERTEN: One of the harsh realities of what we do is that litigation is an extremely expensive process. Companies are trying to find ways to avoid that expense. Mediation doesn’t work all the time, but any time you can get two sides together to talk about issues, there is always the chance that it will resolve the case. Clients are looking for ways to manage their litigation budgets and resolve disputes. Nobody wants to go through litigation as a part of their business.
