The Virginia Bar Association

Reuniting America: Can We Be Part

of the Answer?

A program examining what lawyers and legal educators, educators, and

community leaders can doto restore a culture of

civil, effective communication and problem-solving

in our communities and institutions.

January 26, 20191 Williamsburg Lodge I Williamsburg, VA

Written Materials

A presentation of The Virginia Bar Association's

Committee on Special Issues of National & State Importance & the Joint Alternative Dispute Resolution Committee

The biographical information is provided by the speakers or collected from their websites.

PRESENTERS

Reuniting America: Can We Be Part of the Answer?

Prof. A. Mechele Dickerson

A. Mechele Dickerson is a member of the law faculty at University of Texasat Austin School of Law where she holds the Arthur L. Moller Chair inBankruptcy Law and Practice and is honored as the University DistinguishedTeaching Professor. She is a nationally recognized scholar and global media

expert on consumer debt, housing affordability and homeownership. She is author of Homeownership and America’s Financial Underclass: Flawed Premises, Broken Promises, New Prescriptions (Cambridge, 2014) and is also author of the forthcoming book from Harvard University Press, The Neglected Middle Class: Inequality, Race and the Looming Economic Crisis. Professor Dickerson has testified before the Congress on “The Future of Housing in America: Government Regulations and the High Cost of Housing.”

A graduate of Harvard-Radcliffe Colleges and Harvard Law School, Professor Dickerson clerked for Hon. (ret.) Nathaniel R. Jones, before entering private practice in Virginia. She later joined the law faculty at William and Mary where she served as Professor of Law before departing for the University of Texas where she also has served as Associate Dean for Academic Affairs. She is an elected member of the American Law Institute.

Professor Dickerson also served as a member of The Virginia Bar Association Board of Directors.

Lt. Col. Aram M. Donigian

Aram Donigian is a Lieutenant Colonel in the United States Army with over 20-years of service as an Infantry and Public Affairs Officer. Aram is a 1998graduate of the United States Military Academy (USMA) at West Point and2008 graduate of the Tuck School of Business at Dartmouth. He has served

three tours in Afghanistan conducting combat operations, advising and mentoring management faculty at the National Military Academy of Afghanistan, and directing the engagement cell for Combined Joint Interagency Task Force Shafafiyat, the counter corruption staff section for the International Security Assistance Forces headquarters. He is transitioning out of the military this year after most recently serving as the Director of Leadership Programs and teaching both leadership and negotiation courses at the United States Air Force Academy (USAFA). At USAFA, he has been instrumental in the creation and launch of Officership, an integrated, cross

The biographical information is provided by the speakers or collected from their websites.

discipline, four-year leadership development curriculum. He also serves as the lead planner and facilitator for the Cadet Leadership Enrichment Seminar (CLES) training over 200 cadets annually. From 2008 to 2011, as an Assistant Professor at West Point, Aram received the Academy’s Apgar Award while teaching leadership, negotiation, and human resource management. Additionally, he co-founded the West Point Negotiation Project (WPNP) and served as the co-director helping to enhance the ability of military leaders to engage more effectively in the complex and challenging negotiations they face in both peace and combat situations. He is a co-author of several articles on military negotiation to include "Extreme Negotiations: What US Soldiers in Afghanistan have Learned about the Art of Managing High-Risk, High-Stakes Situations" (Harvard Business Review, November 2010). As a leading expert on the topic of military negotiation, Aram has presented at numerous civil society functions, universities, and private corporations in the United States, Afghanistan, and Europe. Additionally, he has taught numerous negotiation training events for units deploying or deployed to Afghanistan and Iraq. He is married with six children and lives on a five-acre farm.

Jeanne F. Franklin

Retired in 2018 from her practice of law, she continues to practice mediation as a Virginia certified mediator and mediator mentor, and trains lawyers and others in mediation/facilitation techniques. Additional information can be obtained at www.franklinsolutions.net.

Stacy E. Lee

Stacy Elizabeth Lee, a native of Richmond, Virginia, currently serves as staff counsel for Allstate Insurance Company. She defends insured clients in bodily injury and property damage cases in the Richmond metropolitan area. Prior to joining Allstate, Stacy practiced criminal law both in private practice

and as a Public Defender for the City of Richmond. She also worked in private practice handling civil matters spanning contract law, landlord-tenant law, family law, estate law and collections law. She received a Bachelor of Arts degree in Public Policy with a minor in Dance from the College of William & Mary and a Juris Doctor from North Carolina Central University School of Law.

Stacy is the President of the Old Dominion Bar Association and has previously served as president of the Hill-Tucker Bar Association. In addition, Stacy participates in many civic and community organizations, including serving as co-Director of the Teen Division of the Miss Chesterfield Pageant, a local preliminary to Miss Virginia and Miss America 2.0.

In 2015, Ms. Lee was the recipient of the Communication and Leadership Award for the Richmond Chapter of Toastmaster’s International. Mostly recently, she was recognized as an honoree in the 2017 class of Up and Coming Lawyers by Virginia Lawyers Weekly. Ms. Lee’s motto in life is Knock, Knock Again, Knock Harder, Knock Until A Door Opens.

The biographical information is provided by the speakers or collected from their websites.

President James E. Ryan

James E. Ryan serves as the ninth president of the University of Virginia. A leading expert on law and education, Ryan has written extensively about the ways in which law structures educational opportunity. His articles and essays address such topics as school desegregation, school finance, school

choice, standards and testing, pre-K, and the intersection of special education and neuroscience. Ryan is also the coauthor of the textbook “Educational Policy and the Law” and the author of “Five Miles Away, A World Apart,” which was published in 2010 by Oxford University Press. Ryan’s most recent book, “Wait, What? And Life’s Other Essential Questions,” based on his popular 2016 Commencement speech, was published in 2017 by HarperOne and is a New York Times bestseller. In addition, Ryan has authored articles on constitutional law and theory and has argued before the United States Supreme Court.

Before coming to UVA, Ryan served as dean of the Harvard Graduate School of Education. In this role, Ryan increased the size, strength, and diversity of the faculty through new hires and promotions. He established the Harvard Teacher Fellows program, an innovative teacher training program for Harvard College seniors and recent alumni and began a school-wide effort to reimagine its master’s degree programs. Ryan oversaw an expansion of professional education, including the creation of two new online certificate programs, and launched Usable Knowledge, an online resource designed to broadly disseminate actionable research findings in education. He and colleagues also embarked on an ongoing effort entitled “Fulfilling the Promise of Diversity,” intended to prepare students for careers working in diverse environments, and resulting in new courses, prominent speakers, and teaching workshops related to diversity and inclusion. Under his leadership, the school surpassed its campaign goal of $250 million more than a year ahead of schedule, and raised the largest gift in the school’s history, a $35.5 million gift to establish the Zaentz Early Education Initiative.

Before his deanship, Ryan was the Matheson & Morgenthau Distinguished Professor at the University of Virginia School of Law. He also served as academic associate dean from 2005 to 2009 and founded and directed the school’s Program in Law and Public Service. While at Virginia, Ryan received an All-University Teaching Award, an Outstanding Faculty Award from the State Council of Higher Education for Virginia, and several awards for his scholarship. Ryan has been a visiting professor at Harvard, Yale, and the University of Auckland. He has also served on numerous education boards and commissions, including the U.S. Department of Education’s Equity and Excellence Commission and the board of the Maya Angelou Public Charter School in Washington, D.C.

Ryan received his A.B. summa cum laude from Yale University and his J.D. from the University of Virginia, which he attended on a full scholarship and from which he graduated first in his class. After law school, Ryan clerked for William H. Rehnquist, the late Chief Justice of the United States, and then worked in Newark, N.J., as a public interest lawyer before entering into teaching. Ryan and his wife, Katie, have four children.

Reuniting America

Can We Be Part of The Answer?

INTRODUCTION

Peace cannot be kept by force. It can only be achieved by understanding.

Albert Einstein

History teaches us that men and nations behave wisely once they have exhausted all other alternatives.

Abba Ebban

The more we elaborate our means of communication, the less we communicate.

J.B. Priestly

Can we all just get along? Can we get along?

Rodney King, begging for calm during 1992 LA riots

America is in a cold civil war…

Carl Bernstein, CNN, Sept. 25, 2018

Speaking of civil war…

“…The church so lone, the log-built one,

That echoed to many a parting groan

And natural prayer

Of dying foeman mingled there –

Foeman at morn but friends at eve –

Fame or country least their care:

(What like a bullet can undeceive!)

But now they lie low

While over them the swallows skim

And all is hushed at Shiloh.”

Shiloh, A Requiem (April, 1862), Herman Melville

This morning’s program is a response to our collective uneasiness about incivility and divisiveness in America. We are exposed daily in the public sphere to disrespect for the opinions of others and refusal to consider difficult policy issues with open minds. Our national mood can be fairly characterized as depressed with growing alienation. It has seeped into our communications with family and friends.

We all wonder about the cause and origins of our current national malaise. Perhaps it is rooted in tensions long simmering beneath the surface, as opposed to something entirely new. But speculating about the cause of our collective discontent is not the focus of our program. Instead, it is the nation’s uncertain future that concerns us today. Where is this sense of constant conflict and incivility taking us as a

country? How deep are the wounds to our national psyche? What other negative consequences lurk ahead? What can we do to protect ourselves and strengthen our communities?

The VBA Committee on Special Issues of National and State Importance typically aims to identify concrete, cutting edge issues for our plenary sessions. We aim to bring the best information to your attention so you will be equipped to think about and deal with these problems in your professional and civic roles. Yesterday’s program on Artificial Intelligence was just such a program.

Today’s program is very different. The subject is not concrete; it is amorphous and beguiling. We could easily get diverted and emotionally tied up in discussions lamenting the decline in our civil discourse, debating the reasons for it and opining about who bears the fault. Our committee wondered whether we should even take it on.

Today, our goal is to inspire our members and friends, the audience, to alter and improve the situation, take personal responsibility for what we bring to it, and assist the VBA to use its position and initiate efforts designed to alter and improve the situation.

How should we design the program? What voices should we hear? We read much of the ever-growing commentary on this topic, and spoke with colleagues working “on the ground,” teaching, mediating, negotiating, making it their business to bring people together. We researched what groups and institutions are already actively engaged in seeking solutions and elevating dialogue. We looked for support from the Joint Committee on Alternative Dispute Resolution of the VBA and the VSB; that committee is co-sponsoring this program.

Then we came upon Jim Ryan’s slim book with the unlikely title, “Wait, What?” and we saw a path forward for this program.

We will not focus on history, politics or cultural commentary - as fascinating as they are. Instead, Jim Ryan and our other panelists will help us explore how we, as lawyers, educators, civic leaders and members of our communities, can help to improve our public discourse and inspire our fellow citizens to face our problems together. We can do better. Can we agree on that?

Your program materials include pertinent writings, other resources, and communication tips and process guides for you. Please consult them; we hope you will use them to good effect. We trust that learning and creative responses will continue after this program as we reflect and expand our perspectives and hone our communication skills.

V. Practicing Professionalism and Its Possible Impact

VBA Principles of Professionalism

VBA Plaque

Professionalism and Ethics Articles by

Virginia Supreme Court Justice Stephen R. McCullough

and

Bill Glover, Esq.

Consider the impact of lawyers who practice ethically and professionally - on society, on the functioning of our justice system, and on the perception by members of the public, those whom our justice system serves, of its fairness.

Consider the point made in The Atlantic article cited in the resource section herein that social studies indicate anger is more modulated or is less destructive in contexts where persons have a general trust in the overall fairness of the system that affects them.

Principles of Professionalism - Professional Guidelines and Rul... Page 2 of 4

The Virginia State Bar

Professional Guidelines

Search the Professional Guidelines!� ____ __.I I Search I

Principles of Professionalism

Preface

"The Supreme Court of Virginia endorses the attached Principles of Professionalism for Virginia Lawyers prepared by the Virginia Bar Association Commission on Professionalism. Having been unanimously endorsed by Virginia's statewide bar organizations, the Principles articu- late standards of civility to which all Virginia lawyers should aspire. The Principles of Professionalism shall not serve as a basis for disciplinary action or for civil liability. We encourage the widest possible dissemina- tion of these Principles."

Leroy Rountree Hassell, Sr. Chief Justice, Supreme Court of Virginia

Preamble

Virginia can take special pride in the important role its lawyers have played in American history. From Thomas Jefferson to Oliver Hill, Virginia lawyers have epitomized our profession's highest ideals. Without losing sight of what lawyers do for their clients and for the public, lawyers should also focus on how they perform their duties. In their very first professional act, all Virginia lawyers pledge to demean themselves "professionally and courteously." Lawyers help their clients, the institutions with which they deal and themselves when they treat everyone with respect and courtesy. These Principles of Professionalism serve as a reminder of how Virginia lawyers have acted in the past and should act in the future.

http://www.vsb.org/pro-guidelines/index.php/principles/ 12/19/2018

Principles of Professionalism - Professional Guidelines and Rul... Page 3 of 4

Principles

In my conduct toward everyone with whom I deal, I should:

• Remember that I am part of a self-governing profession, and that my actions and demeanor reflect upon my profession.

• Act at all times with professional integrity, so that others will know that my word is my bond.

• Avoid all bigotry, discrimination, or prejudice. • Treat everyone as I want to be treated-with respect and courtesy. • Act as a mentor for less experienced lawyers and as a role model for

future generations of lawyers. • Contribute my skills, knowledge and influence in the service of my

community. • Encourage those I supervise to act with the same professionalism to

which I aspire.

In my conduct toward my clients, I should:

• Act with diligence and dedication - tempered with, but never compromised by, my professional conduct toward others.

• Act with respect and courtesy. • Explain to clients that my courteous conduct toward others does not

reflect a lack of zeal in advancing their interests, but rather is more likely to successfully advance their interests.

In my conduct toward courts and other institutions with which I deal, I should:

• Treat all judges and court personnel with respect and courtesy. • Be punctual in attending all court appearances and other scheduled

events. • A void any conduct that offends the dignity or decorum of any courts or

other institutions, such as inappropriate displays of emotion or unbecoming language directed at the courts or any other participants.

• Explain to my clients that they should also act with respect and courtesy when dealing with courts and other institutions.

http://www.vsb.org/pro-guidelines/index.php/principles/ 12/19/2018

Principles of Professionalism - Professional Guidelines and Rul... Page 4 of 4

In my conduct toward opposing counsel, I should:

• Treat both opposing counsel and their staff with respect and courtesy. • A void ad hominem attacks, recognizing that in nearly every situation

opposing lawyers are simply serving their clients as I am trying to serve my clients.

• A void reciprocating any unprofessional conduct by opposing counsel, explaining to my clients that such behavior harms rather than advances the clients' interests.

• Cooperate as much as possible on procedural and logistical matters, so that the clients' and lawyers' efforts can be directed toward the substance of disputes or disagreements.

• Cooperate in scheduling any discovery, negotiations, meetings, closings, hearings or other litigation or transactional events, accommodating opposing counsels' schedules whenever possible.

• Agree whenever possible to opposing counsels' reasonable requests for extensions of time that are consistent with my primary duties to advance my clients' interests.

• Notify opposing counsel of any schedule changes as soon as possible. • Return telephone calls, e-mails and other communications as promptly

as I can, even if we disagree about the subject matter of the communication, resolving to disagree without being disagreeable.

• Be punctual in attending all scheduled events. • Resist being affected by any ill feelings opposing clients may have

toward each other, remembering that any conflict is between the clients and not between the lawyers.

Updated: December 22, 2009

© 1996 - 2018 Virginia State Bar I Privacy Policy 1111 East Main Street, Suite 700 I Richmond, Virginia 23219-0026 All Departments: (804) 775-0500 Telecommunication Device for the Deaf/TDD (Hearing-Impaired Only): 804-775-0502 Office Hours: Mon.-Fri. 8:15 a.m. to 4:45 p.m. (excluding holidays) The Clerk's Office does not accept filings after 4:45 p.m.

http://www.vsb.org/pro-guidelines/index.php/principles/ 12/19/2018

Principles of Professionalismfor Virginia Lawyers

PPrreeaammbbllee:: Virginia can take special pride in the important role its lawyers have played in American history. From Thomas Jefferson to Oliver Hill, Virginialawyers have epitomized our profession’s highest ideals. Without losing sight of what lawyers do for their clients and for the public, lawyers should also focuson how they perform their duties. In their very first professional act, all Virginia lawyers pledge to demean themselves “professionally and courteously.” Lawyershelp their clients, the institutions with which they deal and themselves when they treat everyone with respect and courtesy. These Principles of Professionalismserve as a reminder of how Virginia lawyers have acted in the past and should act in the future.

In my conduct toward everyone with whom I deal, I should:• Remember that I am part of a self-governing profession, and that my actions and demeanor reflect

upon my profession.• Act at all times with professional integrity, so that others will know that my word is my bond.• Avoid all bigotry, discrimination, or prejudice.• Treat everyone as I want to be treated – with respect and courtesy.• Act as a mentor for less experienced lawyers and as a role model for future generations of lawyers.• Contribute my skills, knowledge and influence in the service of my community.• Encourage those I supervise to act with the same professionalism to which I aspire.

In my conduct toward my clients, I should:• Act with diligence and dedication – tempered with, but never compromised by, my professional

conduct toward others.• Act with respect and courtesy.• Explain to clients that my courteous conduct toward others does not reflect a lack of zeal in advancing

their interests, but rather is more likely to successfully advance their interests.

In my conduct toward courts and other institutions with which I deal, I should:• Treat all judges and court personnel with respect and courtesy.• Be punctual in attending all court appearances and other scheduled events.• Avoid any conduct that offends the dignity or decorum of any courts or other institutions, such as

inappropriate displays of emotion or unbecoming language directed at the courts or any otherparticipants.

• Explain to my clients that they should also act with respect and courtesy when dealing with courts andother institutions.

In my conduct toward opposing counsel, I should:• Treat both opposing counsel and their staff with respect and courtesy.• Avoid ad hominem attacks, recognizing that in nearly every situation opposing lawyers are simply

serving their clients as I am trying to serve my clients.• Avoid reciprocating any unprofessional conduct by opposing counsel, explaining to my clients that such

behavior harms rather than advances the clients’ interests.• Cooperate as much as possible on procedural and logistical matters, so that the clients’ and lawyers’

efforts can be directed toward the substance of disputes or disagreements.• Cooperate in scheduling any discovery, negotiations, meetings, closings, hearings or other litigation or

transactional events, accommodating opposing counsel’s schedules whenever possible.• Agree whenever possible to opposing counsel’s reasonable requests for extensions of time that are

consistent with my primary duties to advance my clients’ interests.• Notify opposing counsel of any schedule changes as soon as possible.• Return telephone calls, e-mails and other communications as promptly as I can, even if we disagree

about the subject matter of the communication, resolving to disagree without being disagreeable.• Be punctual in attending all scheduled events.• Resist being affected by any ill feelings opposing clients may have toward each other, remembering that

any conflict is between the clients and not between the lawyers.

These Principles were developed by The Virginia Bar Association Commission on Professionalismand endorsed by the Supreme Court of Virginia and all statewide bar organizations in 2008.

The Development of Ethics Rules for the Practice of Law

and the Concept of Professionalism

The Evolution of Ethics Rules and Ultimately Professionalism as Mandated Aspects of the Practice of Law in a Rapidly Democratizing Profession

When George Washington led the colonies to victory over Great Britain, and his friends

and fellow Virginians Jefferson, Madison and Monroe all labored over the new Constitution, few

written rules existed governing the behavior of lawyers. Conventions of ethics and etiquette

based on common law obligations were expressed in case law or simply understood as tradition

among the few members of the new American bar.

The legal profession operated independently and with little oversight. Tocqueville, in his

work Democracy in America, observed that the true aristocracy in the United States was not the

wealthy, but the bench and bar.

In America there are no nobles or men of letters, and the people is

apt to mistrust the wealthy; lawyers consequently form the highest

political class, and the most cultivated circle of society. They have

therefore nothing to gain by innovation, which adds a conservative

interest to their natural taste for public order. If I were asked

where I place the American aristocracy, I should reply without

hesitation that it is not composed of the rich, who are united

together by no common tie, but that it occupies the judicial bench

and the bar.

The more we reflect upon all that occurs in the United States the

more shall we be persuaded that the lawyers as a body form the

most powerful, if not the only, counterpoise to the democratic

element. In that country we perceive how eminently the legal

profession is qualified by its powers, and even by its defects, to

2

neutralize the vices which are inherent in popular government.

When the American people is intoxicated by passion, or carried

away by the impetuosity of its ideas, it is checked and stopped by

the almost invisible influence of its legal counsellors, who secretly

oppose their aristocratic propensities to its democratic instincts,

their superstitious attachment to what is antique to its love of

novelty, their narrow views to its immense designs, and their

habitual procrastination to its ardent impatience.

Democracy In America Alexis de Tocqueville 1831--Chapter XVI: Causes Mitigating Tyranny In The United States – Part I

As Tocqueville toured America and wrote his masterpiece, profound changes were

beginning in industry, business and academia. Those changes, and the social changes that

accompanied them, altered forever the aristocratic profession observed by Tocqueville.

The evolution of the profession of law did not go unnoticed. As the role of lawyers in

business expanded exponentially, and the bar grew to meet the need, legal educators began to

recognize the necessity articulation and study of rules governing how lawyers should conduct

themselves. In 1836, a monograph entitled, “Fifty Resolutions in Regard to Professional

Deportment” was published by David Hoffman, a Baltimore lawyer, in a volume entitled “A

Course of Legal Study”, for use in the education of lawyers at the University of Maryland.(1) Judge

George Sharswood published in 1854 entitled “An Essay on Professional Ethics” much of which

was delivered as lectures at the University of Pennsylvania.(2)

These articles formed the basis for the Alabama Code of Ethics which, in 1887, became the

first formal code of legal ethics in the United States.(3) The Alabama Code, and the concepts it

was based upon, were aspirational imperatives rather than black letter rules. Among the bar and

bench, however, there was a growing sense that the profession was in danger of succumbing to the

forces of commerce. The rise of enormously profitable corporations, from railroads and shipping

3

firms to manufacturing and mining, created opportunities for lawyers to become wealthy and

develop larger and larger firms. The “Golden Age” of law was a period of free expansion for the

profession and this drew the attention of jurists and scholars alike.

In 1897, Oliver Wendell Holmes published his essay, ‘The Path of the Law’:

“And happiness I am sure from having known many successful

men, cannot be won simply by being counsel for great corporations

and having an income of fifty thousand dollars. An intellect great

enough to win the prize needs other food besides success. The

remoter and more general aspects of the law are those which give it

universal interest. It is through them that you not only become a

great master in your calling, but connect your subject with the

universe and catch an echo of the infinite; a glimpse of its

unfathomable process, a hint of the universal law.”(4)

Louis Brandeis, who by the turn of the century had established himself as a progressive

legal thinker, approached changes in the profession and the danger they posed to it in less decorous

language. Brandeis gave an address in the spring of 1905 to undergraduates at Harvard entitled

“The Opportunity in the Law.” Brandeis identified the inclination of lawyers working for

corporations to assist the corporations in evading law, Brandeis said:

“It is true that at the present time the lawyer does not hold as high

a position with the people as he held 75 or indeed 50 years ago.

But the reason is not lack of opportunity. It is, instead, this:

instead of holding the position of independence between the

wealthy and the people, prepared to curb the excesses of either,

able lawyers have, to a large extent, allowed themselves to become

adjuncts of great corporations and have neglected the obligations

to use their powers for the protection of the people.”(5)

4

Less than two months later, President Theodore Roosevelt made the commencement

speech at Harvard. Roosevelt exhorted the graduates to moral leadership, especially those who

would join the profession of law. In that speech, Roosevelt criticized the role of elite lawyers

assisting wealthy clients to subvert the law.

“Every man of great wealth who runs his business with cynical

contempt for those prohibitions of the law which, by hired

cunning, he can escape or evade is a menace to our community. .

.and we know that as things actually are, many of the most

influential and most highly remunerated members of the bar in

every center of wealth may get their special task to work out bold

and ingenious schemes by which their very wealthy clients,

individual or corporate, can evade the laws which are made to

regulate in the interest of the public the use of great wealth.”

Finally,

“Surely Harvard has the right to expect from her sons a high

standard of applied morality, whether their paths lead them into

business or into the profession of the law.”(6)

Shortly after those two speeches at Harvard in summer of 2005, Henry St. George Tucker

III, a Virginian and President of the American Bar Association, addressed the 277 delegates at the

annual meeting of the Association raising the question, “Do the ethics of our profession rise to the

high standard which its position of influence in the country demands?”(7)

Tucker contrasted the type of lawyering portrayed by both Brandeis and Roosevelt with the

conduct of the “good lawyer.”

“If by cunning artifice he seeks to conceal the real truth, or by

devious methods he seeks to attain immoral ends under legal form

5

or if for the purpose of obtaining a meretricious success he takes a

position in favor of an immoral conclusion in its application to the

facts of his case, that position binds ready defenders among those

already too willing to applaud a principle which, however base, has

for its object the success of the cause. On the other hand, the

lawyer who fights his battles in the open with no weapons save

those taken from the arsenal of eternal truth and right, who scorns

the temptation to advance a principle for his client or his cause as

his own which cannot be defended in the form of conscience, he

leaves a lasting impress for good upon those who hear him.”(8)

Tucker’s great-grandfather, St. George Tucker, was a close friend of George Washington.

Tucker’s remarks to the ABA are reminiscent, in their tone at least, of the final statement in the

George Washington’s Rules of Civility:

No. 110: “Labor to keep alive in your breast that little spark of celestial fire called conscience.”(9)

Tucker did not ask the American Bar Association to create a code. In fact, what he

suggested was that a course of legal ethics be taught in each American law school. Second, he

suggested that every law school adopt an honor system which Tucker stated would help create, “a

manly sentiment of honor and integrity and a corresponding scorn of chicanery and deception.”(10)

Tucker apparently continued to believe that lawyers could learn and internalize the

strictures of conduct required of them without an articulated code.

Nonetheless, between 1905 and 1908, the American Bar Association worked to promulgate

a series of Canons of professional ethics which debuted in 1908. The Canons were crafted by the

ABA to address the problems of commercialism in the practice of law in the hope that the effort

would help restore the legal profession’s prestige in the eyes of the general public.

6

It is interesting to note that the Canons were originally perceived as a code of

professionalism, not as a set of disciplinary rules.

This is self-evident in the language of the canons themselves, the preamble to them and

their caveats. The preamble states:

In America, where the stability of Courts and of all departments of

government rests upon the approval of the people, it is peculiarly

essential that the system for establishing and dispensing Justice be

developed to a high point of efficiency and so maintained that the

public shall have absolute confidence in the integrity and

impartiality of its administration. The future of the Republic, to a

great extent, depends upon our maintenance of Justice pure and

unsullied. It cannot be so maintained unless the conduct and the

motives of the members of our profession are such as to merit the

approval of all just men. No code or set of rules can be framed,

which will particularize all the duties of the lawyer in the varying

phases of litigation or in all the relations of professional life. The

following Canons of ethics are adopted by the American Bar

Association as a general guide, yet the enumeration of particular

duties should not construed as a denial of the existence of others

equally imperative, though not specifically mentioned.(11)

It is remarkable to the extent of which the 1908 Canons parallel the spirit, and occasionally

even the letter of George Washington Rules of Civility. The first 32 Canons are set forth below,

with portions highlighted to demonstrate the emphasis on civility and decorum.

Canon 1. The Duty of the Lawyer to the Courts.

It is the duty of the lawyer to maintain towards the Courts a

respectful attitude, not for the sake of the temporary incumbent

of the judicial office, but for the maintenance of its supreme

7

importance. Judges, not being wholly free to defend themselves,

are peculiarly entitled to receive the support of the Bar against

unjust criticism and clamor. Whenever there is proper ground for

serious complaint of a judicial officer, it is the right and duty of the

lawyer to submit his grievances to the proper authorities. In such

cases, but not otherwise, such charges should be encouraged and

the person making them should be protected.

Canon 2. The Selection of Judges.

It is the duty of the Bar to endeavor to prevent political

considerations from outweighing judicial fitness in the selection of

Judges. It should protect earnestly and actively against the

appointment or election of those who are unsuitable for the Bench;

and it should strive to have elevated thereto only those willing to

forego other employments, whether of a business, political or other

character, which may embarrass their free and fair consideration of

questions before them for decision. The aspiration of lawyers for

judicial position should be governed by an impartial estimate of

their ability to add honor to the office and not by a desire for

the distinction the position may bring to themselves.

Canon 3. Attempts to Exert Personal Influence on the Court.

Marked attention and unusual hospitality on the part of a

lawyer to a Judge, uncalled for by the personal relations of the

parties, subject both the Judge and the lawyer 1 to

misconstructions of motive and should be avoided. A lawyer

should not communicate or argue privately with the Judge as to the

merits of a pending cause, and he deserves rebuke and denunciation

for any device or attempt to gain from a Judge special personal

consideration or favor. A self-respecting independence in the

discharge of professional duty, without denial or diminution of

8

the courtesy and respect due the Judge’s station, is the only

proper foundation for cordial personal and official relations

between Bench and Bar.

Canon 4. When Counsel for an Indigent Prisoner.

A lawyer assigned as counsel for an indigent prisoner ought not to

ask to be excused for any trivial reason, and should always exert his

best efforts in his behalf.

Canon 5. The Defense or Prosecution of Those Accused of a Crime.

It is the right of the lawyer to undertake the defense of a person

accused of crime, regardless of his personal opinion as to the guilt

of the accused; otherwise, innocent persons, victims only of

suspicious circumstances, might be denied proper defense. Having

undertaken such defense, the lawyer is bound by all fair and

honorable means to present every defense that the law of the

land permits, to the end that no person may be deprived of life

or liberty, but by due process of law. The primary duty of a

lawyer engaged in public prosecution is not to convict, but to see

that justice is done. The suppression of facts or the secreting of

witnesses capable of establishing the innocence of the accused is

highly reprehensible.

Canon 6. Adverse Influences and Conflicting Interests.

It is the duty of a lawyer at the time of retainer to disclose to the

client all the circumstances of his relations to the parties, and any

interest in or connection with the controversy, which might

influence the client in the selection of counsel. It is unprofessional

to represent conflicting interests, except by express consent of all

concerned given after a full disclosure of the facts. Within the

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meaning of this canon, a lawyer represents conflicting interests

when, in behalf of one client, it is his duty to contend for that which

duty to another client requires him to oppose. The obligation to

represent the client with undivided loyalty and not to divulge his

secrets or confidences forbids also the subsequent acceptance of

retainers or employment from others in matters adversely affecting

any interest of the client with respect to which confidence has been

reposed.

Canon 7. Professional Colleagues and Conflicts of Opinion.

A client’s proffer of assistance of additional counsel should not be

regarded as evidence of want of confidence, but the matter should

be left to the determination of the client. A lawyer should decline

association as colleague if it is objectionable to the original

counsel, but if the lawyer first retained is relieved, another may

come into the case. When lawyers jointly associated in a cause

cannot agree as to any matter vital to the interest of the client, the

conflict of opinion should be frankly stated to him for his final

determination. His decision should be accepted unless the nature of

the difference makes it impracticable for the lawyer whose

judgment has been overruled to co-operate effectively. In this event

it is his duty to ask the client to relieve him. Efforts, direct and

indirect, in any way to encroach upon the employment of

another lawyer, are unworthy of those who should be brethren

at the Bar; but, nonetheless, it is the right of any lawyer,

without fear or favor, to give proper advice to those seeking

relief against unfaithful or neglectful counsel, generally after

communication with the lawyer of whom the complaint is

made.

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Canon 8. Advising Upon the Merits of a Client’s Cause.

A lawyer should endeavor to obtain full knowledge of his client’s

cause before advising thereon, and he is bound to give a candid

opinion of the merits and probable result of pending or

contemplated litigation. The miscarriages to which justice is

subject, by reasons of surprises and disappointments in

evidence and witnesses, and through mistakes of juries and

errors of Courts, even though only occasional, admonish

lawyers to beware of bold and confident assurances to clients,

especially where the employment may depend upon such

assurance. Whenever the controversy will admit of fair adjustment,

the client should be advised to avoid or to end the litigation.

Canon 9. Negotiations with Opposite Party.

A lawyer should not in any way communicate upon the subject of

controversy with a party represented by counsel; much less should

he undertake to negotiate or compromise the matter with him, but

should deal only with his counsel. It is incumbent upon the

lawyer most particularly to avoid everything that may tend to

mislead a party not represented by counsel, and he should not

undertake to advise him as to the law.

Canon 10. Acquiring Interest in Litigation.

The lawyer should not purchase any interest in the subject matter of

the litigation which he is conducting.

Canon 11. Dealing with Trust Property.

The lawyer should refrain from any action whereby for his personal

benefit or gain he abuses or takes advantage of the confidence

reposed in him by his client. Money of the client or collected for

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the client or other just property coming into the possession of the

lawyer should be reported and accounted for promptly, and should

not under any circumstances be commingled with his own or be

used by him.

Canon 12. Fixing the Amount of the Fee.

In fixing fees, lawyers should avoid charges which overestimate

their advice and services, as well as those which undervalue them.

A client’s ability to pay cannot justify a charge in excess of the

value of the service, though his poverty may require a less charge,

or even none at all. The reasonable requests of brother lawyers, and

of their widows and orphans without ample means, should receive

special and kindly consideration. In determining the amount of the

fee, it is proper to consider: (1) the time and labor required, the

novelty and difficulty of the questions involved and the skill

requisite properly to conduct the cause; (2) whether the acceptance

of employment in the particular case will preclude the lawyer’s

appearance for others in cases likely to arise out of the transaction,

and in which there is a reasonable expectation that otherwise he

would be employed, or will involve the loss of other employment

while employed in the particular case or antagonisms with other

clients; (3) the customary charges of the Bar for similar services;

(4) the amount involved in the controversy and the benefits

resulting to the client from the services; (5) the contingency or the

certainty of the compensation; and (6) the character of the

employment, whether casual or for an established and constant

client. No one of these considerations in itself is controlling. They

are mere guides in ascertaining the real value of the service. In

determining the customary charges of the Bar for similar services,

it is proper for a lawyer to consider a schedule of minimum fees

adopted by a bar association, but no lawyer should permit himself

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to be controlled thereby or to follow it as his sole guide in

determining the amount of his fee. In fixing fees it should never be

forgotten that the profession is a branch of the administration of

justice and not a mere money-getting trade.

Canon 13. Contingent Fees.

A contract for a contingent fee where sanctioned by law, should be

reasonable under all the circumstances of the case, including the

risk and uncertainty of the compensation, but should always be

subject to the supervision of a Court, as to its reasonableness.

Canon 14. Suing a Client for a Fee.

Controversies with clients concerning compensation are to be

avoided by the lawyer so far as shall be compatible with his

self-respect and with his right to receive reasonable recompense

for his services; and lawsuits with clients should be resorted to

only to prevent injustice, imposition or fraud.

Canon 15. How Far a Lawyer May Go in Supporting a Client’s Cause.

Nothing operates more certainly to create or to foster popular

prejudice against lawyers as a class, and to deprive the

profession of that full measure of public esteem and confidence

which belongs to the proper discharge of its duties than does

the false claim, often set up by the unscrupulous in defense of

questionable transactions, that it is the duty of the lawyer to do

whatever may enable him to succeed in winning his client’s

cause. It is improper for a lawyer to assert in argument his personal

belief in his client’s innocence or in the justice of his cause. The

lawyer owes entire devotion to the interest of the client, warm zeal

in the maintenance and defense of his rights and the exertion of his

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utmost learning and ability, to the end that nothing be taken or be

withheld from him, save by the rules of law, legally applied. No

fear of judicial disfavor or public unpopularity should restrain him

from the full discharge of his duty. In the judicial forum the client

is entitled to the benefit of any and every remedy and defense that

is authorized by the law of the land, and he may expect his lawyer

to assert every such remedy or defense. But it is steadfastly to be

borne in the mind that the great trust of the lawyer is to be

performed within and not without the bounds of the law. The

office of attorney does not permit, much less does it demand of

him for any client, violation of law or any manner of fraud or

chicane. He must obey his own conscience and not that of his

client.

Canon 16. Restraining Clients from Improprieties.

A lawyer should use his best efforts to restrain and to prevent his

clients from doing those things which the lawyer himself ought not

to do, particularly with reference to their conduct towards the

Courts, judicial officers, jurors, witnesses and suitors. If a client

persists in such wrongdoing the lawyer should terminate their

relation.

Canon 17. Ill Feeling and Personalities Between Advocates.

Clients, not lawyers, are the litigants. Whatever may be the ill-

feeling existing between clients, it should not be allowed to

influence counsel in their conduct and demeanor toward each other

or toward suitors in the cause. All personalities between counsel

should be scrupulously avoided. In the trial of a cause it is indecent

to allude to the personal history or the personal peculiarities and

idiosyncrasies of counsel on the other side. Personal colloquies

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between counsel which cause delay and promote unseemly

wrangling should also be carefully avoided.

Canon 18. Treatment of Witnesses and Litigants.

A lawyer should always treat adverse witnesses and suitors with

fairness and due consideration, and he should never minister to the

malevolence or prejudices of a client in the trial or conduct of a

cause. The client cannot be made the keeper of the lawyer’s

conscience in professional matters. He has no right to demand that

his counsel shall abuse the opposite party or indulge in offensive

personalities. Improper speech is not excusable on the ground

that it is what the client would say if speaking in his own behalf.

Canon 19. Appearance of lawyer as Witness for His Client.

When a lawyer is a witness for his client, except as to merely

formal matters, such as the attestation or custody of an instrument

and the like, he should leave the trial of the case to other counsel.

Except when essential to the ends of justice, a lawyer should avoid

testifying in court in behalf of his client.

Canon 20. Newspaper Discussion of Pending Litigation.

Newspaper publications by a lawyer as to pending or anticipated

litigation may interfere with a fair trial in the Courts and otherwise

prejudice the due administration of justice. Generally they are to be

condemned. If the extreme circumstances of a particular case

justify a statement to the public, it is unprofessional to make it

anonymously. An ex parte reference to the facts should not go

beyond quotation from the records and papers on file in the Court;

but even in extreme cases it is better to avoid any ex parte

statement.

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Canon 21. Punctuality and Expedition.

It is the duty of the lawyer not only to his client, but also to the

Courts and to the public to be punctual in attendance, and to be

concise and direct in the trial and disposition of causes.

Canon 22. Candor and Fairness.

The conduct of the lawyer before the Court and with other lawyers

should be characterized by candor and fairness. It is not candid or

fair for the lawyer knowingly to misquote the contents of a paper,

the testimony of a witness, the language or the argument of

opposing counsel, or the language of a decision or a textbook; or

with knowledge of its invalidity, to cite as authority a decision that

has been overruled, or a statute that has been repealed; or in

argument to assert as a fact that which has not been proved, or in

those jurisdictions where a side has the opening and closing

arguments to mislead his opponent by concealing or withholding

positions in his opening argument upon which his side then intends

to rely. It is unprofessional and dishonorable to deal other than

candidly with the facts in taking the statements of witnesses, in

drawing affidavits and other documents, and in the presentation of

causes. A lawyer should not offer evidence which he knows the

Court should reject, in order to get the same before the jury by

argument for its admissibility, nor should he address to the Judge

arguments upon any point not properly calling for determination by

him. Neither should he introduce into an argument, addressed

to the Court, remarks or statements intended to influence the

jury or bystanders. These and all kindred practices are

unprofessional and unworthy of an officer of the law charged,

as is the lawyer, with the duty of aiding in the administration of

justice.

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Canon 23. Attitude Toward Jury.

All attempts to curry favor with juries by fawning, flattery or

pretended solicitude for their personal conduct are

unprofessional. Suggestions of counsel, looking to the comfort or

convenience of jurors, and propositions to dispense with argument,

should be made to the Court out of the jury’s hearing. A lawyer

must never converse privately with jurors about the case; and both

before and during the trial he should avoid communicating with

them, even as to matters foreign to the cause.

Canon 24. Right of Lawyer to Control the Incidents of the Trial.

As to incidental matters pending the trial, not affecting the merits of

the cause, or working substantial prejudice to the rights of the

client, such as forcing the opposite lawyer to trial when he is under

affliction or bereavement; forcing the trial on a particular day to the

injury of the opposite lawyer when no harm will result from a trial

at a different time; agreeing to an extension of time for signing a

bill of exceptions, cross interrogatories and the like, the lawyer

must be allowed to judge. In such matters no client has a right to

demand that his counsel shall be illiberal, or that he do anything

therein repugnant to his own sense of honor and propriety.

Canon 25. Taking Technical Advantage of Opposite Counsel; Agreements with Him.

A lawyer should not ignore known customs or practice of the Bar

or of a particular Court, even when the law permits, without giving

timely notice to the opposing counsel. As far as possible, important

agreements, affecting the rights of clients, should be reduced to

writing; but it is dishonorable to avoid performance of an

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agreement fairly made because it is not reduced to writing as

required by rules of Court.

Canon 26. Professional Advocacy Other Than Before Courts.

A lawyer openly, and in his true character, may render professional

services before legislative or other bodies, regarding proposed

legislation and in advocacy of claims before departments of

government, upon the same principles of ethics which justify his

appearance before the Courts; but it is unprofessional for a lawyer

so engaged to conceal his attorneyship, or to employ secret

personal solicitations, or to use means other than those addressed to

the reason and understanding, to influence action.

Canon 27.Advertising, Direct or Indirect.

It is unprofessional to solicit professional employment by circulars,

advertisements, through touters or by personal communications or

interviews not warranted by personal relations. Indirect

advertisements for professional employment such as furnishing

or inspiring newspaper comments, or procuring his photograph

to be published in connection with causes in which the lawyer

has been or is engaged or concerning the manner of their

conduct, the magnitude of the interest involved, the importance

of the lawyer’s position, and all other like self-laudation, offend

the traditions and lower the tone of our profession and are

reprehensible; but the customary use of simple professional cards

is not improper. Publication in reputable law lists in a manner

consistent with the standards of conduct imposed by these canons

of brief biographical and informative data is permissible. Such data

must not be misleading and may include only a statement of the

lawyer’s name and the names of his professional associates;

addresses, telephone numbers, cable addresses; branches of the

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profession practiced; date and place of birth and admission to the

bar; schools attended, with dates of graduation, degrees and other

educational distinctions; public or quasi-public offices; posts of

honor; legal authorships; legal teaching positions; memberships and

offices in bar association and committees thereof, in legal and

scientific societies and fraternities; foreign language ability; the fact

of listings in other reputable law lists; the names and addresses of

references; and, with their written consent, the names of clients

regularly represented. A certificate of compliance with the Rules

and Standards issued by the Special Committee of Law Lists may

be treated as evidence that such list is reputable. It is not improper

for a lawyer who is admitted to practice as proctor in admiralty to

use that designation on his letterhead or shingle or for a lawyer who

has complied with the statutory requirements of admission to

practice before the patent office to so use the designation “patent

attorney” or “patent lawyer” or “trademark attorney” or “trademark

lawyer” or any combination of those terms.

Canon 28. Stirring Up Litigation, Directly or Through Agents.

It is unprofessional for a lawyer to volunteer advice to bring a

lawsuit, except in rare cases where ties of blood, relationship or

trust make it his duty to do so. Stirring up strife and litigation is not

only unprofessional, but it is indictable at common law. It is

disreputable to hunt up defects in titles or other causes of action and

inform thereof in order to be employed to bring suit or collect

judgment, or to breed litigation by seeking out those with claims for

personal injuries or those having any other grounds of action in

order to secure them as clients, or to employ agents or runners for

like purposes, or to pay or reward, directly or indirectly, those who

bring or influence the bringing of such cases to his office, or to

remunerate policemen, court or prison officials, physicians, hospital

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attaches or others who may succeed, under the guise of giving

disinterested friendly advice, in influencing the criminal, the sick

and the injured, the ignorant or other, to seek his professional

services. A duty to the public and to the profession devolves upon

every member of the Bar having knowledge of such practices upon

the part of any practitioner immediately to inform thereof to the end

that the offender may be disbarred.

Canon 29. Upholding the Honor of the Profession.

Lawyers should expose without fear or favor before the proper

tribunals corrupt or dishonest conduct in the profession, and should

accept without hesitation employment against a member of the Bar

who has wronged his client. The counsel upon the trial of a cause in

which perjury has been committed owe it to the profession and to

the public to bring the matter to the knowledge of the prosecuting

authorities. The lawyer should aid in guarding the Bar against the

admission to the profession of candidates unfit or unqualified

because deficient in either moral character or education. He should

strive at all times to uphold the honor and to maintain the

dignity of the profession and to improve not only the law but

the administration of justice.

Canon 30. Justifiable and Unjustifiable Litigations.

The lawyer must decline to conduct a civil cause or to make a

defense when convinced that it is intended merely to harass or to

injure the opposite party or to work oppression or wrong. But

otherwise it is his right, and, having accepted retainer, it becomes

his duty to insist upon the judgment of the Court as to the legal

merits of his client’s claim. His appearance in Court should be

deemed equivalent to an assertion on his honor that in his opinion

his client’s cause is one proper for judicial determination.

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Canon 31. Responsibility for Litigation.

No lawyer is obliged to act either as advisor or advocate for every

person who may wish to become his client. He has the right to

decline employment. Every lawyer upon his own responsibility

must decide what employment he will accept as counsel, what

causes he will bring into Court for plaintiffs, what causes he will

contest in Court for defendants. The responsibility for advising as

to questionable transactions, for bringing questionable suits, for

urging questionable defenses, is the lawyer’s responsibility. He

cannot escape it by urging as an excuse that he is only following his

client’s instructions.

Canon 32. The Lawyer’s Duty in Its Last Analysis.

No client, corporate or individual, however powerful, nor any

cause, civil or political, however important, is entitled to receive

nor should any lawyer render, any service or advice involving

disloyalty to the law whose ministers we are, or disrespect of

the judicial office, which we are bound to uphold, or corruption

of any person or persons exercising a public office or private

trust, or deception or betrayal of the public. When rendering

any such improper service or advice, the lawyer invites and

merits stern and just condemnation. Correspondingly, he

advances the honor of his profession and the best interests of

his client when he renders service or gives advice tending to

impress upon the client and his undertaking exact compliance

with the strictest principles of moral law. He must also observe

and advise his client to observe the statute law, though until a

statute shall have been construed and interpreted by competent

adjudication, he is free and he is entitled to advise as to its

validity and as to what he conscientiously believes to be its just

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meaning and extent. But above all a lawyer will find his highest

honor in a deserved reputation for fidelity to private trust and

to public duty, as an honest man and as a patriotic and loyal

citizen.(12)

Despite the intent of the American Bar Association to use the Canons as guides for

behavior and as a statement of a corporate commitment by lawyers to core concepts of

professionalism, the Canons almost immediately begin to be used as ethics rules for the purpose of

punishing lawyers who fail to abide by them.(13)

By the 1930s, leaders in the profession recognized that the nineteenth century model of

ethics rules and enforcement of them had been eclipsed by changes in business and society and

that a code of conduct was necessary. One of the reasons given for the need for a code was the

fact that the bar had become too heterogeneous. The implication of regret in this sentiment

notwithstanding, the reality of the addition of middle-class men, and a few women, to the bar did

necessitate changes in its regulation—and a move away from echoes of class privilege and

paternalism.

Part of the reasoning for the development of an enforceable code may have been less

sociological and more practical; the ability of the bars of the various states to remain self-regulated

depended upon public belief that the lawyers were actually disciplining each other. Regulation of

business blossomed after the Great Depression and statements of principle like those expressed in

the Canons were insufficient to satisfy the public. Mandatory bar membership increased as did

agreement by the members to be bound by a “code of ethics” or a “code of professional

responsibility.”

In 1964, Lewis F. Powell, Jr., who was then serving as the President of the American Bar

Association, set out to cause the creation of a model Code of Professional Responsibility. This

22

document was ultimately created with nine basic Canons for expressions of principle coupled with

Disciplinary Rules and then non-binding Ethical Considerations.(14)

The code of professional responsibility followed in general form and spirit the 1908

Canons with their amendments. The disciplinary rules remained articulations of the principles in

the Canons in application. The ethical considerations were, as always, merely aspirational.

By 1977, the American Bar Association determined to re-examine its code and after six

years of study, adopted in 1983, the Rules of Professional Conduct which moved away from the

three-part model of Canons, Disciplinary Rules and Ethical Considerations. The Rules of

Professional Conduct began to look at the roles and relationships within which lawyers acted and

rules to govern those activities rather than rules growing out of statements of principles as had

been articulated initially in 1908 and then later in 1964.

The Rules of Professional Conduct were revised again in 2002 and finally in 2012. As of

the present, 49 states, the District of Columbia and the Virgin Islands have adopted, in large part,

the Rules of Professional Conduct for ethical regulations of the bar in those respective states.(15)

Meanwhile, Federal Courts and Bankruptcy Courts developed rules covering behavior of

lawyers. Trials on charges of violations of disciplinary rules began to take place at the local, state

and federal level. Due process for lawyers became the touchstone for the development of rules,

and procedures for their enforcement. Rules evolved to meet changes in society the way business

is conducted and technology. The United States Supreme Court weighed in on price agreements

and advertising.

As the practice of law became more complex and increasingly commercialized, codes of

professional conduct grew longer and more complex. Meanwhile, some bar leaders and jurists

feared that the principles articulated in the 19th Century and set out in the Canons of 1908 would

be lost. The “crassness” of advertising and the intensity of competition for legal business, coupled

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with the increasing cost of legal services and the lack of access to justice caused a turn back to the

concepts of professionalism and civility.

Chief Justice Harry Carrico was one of the judges worrying about these changes, as was

Lewis Powell. In the late 1970s, Justice Carrico spearheaded the creation of a professional course

agenda to be taught to all newly admitted Virginia lawyers. Dean Jon Jeffries from the University

of Virginia Law School and Circuit Court Judge David Stitt were among those who participated in

the creation of this course, the first of its nature in the country.

The course, referred to for many years as the Mandatory Professionalism Course, and now

known as the Carrico Professionalism Course, combined topics on civility, professional

obligations to colleagues, the bench and the community with ethical mandates of professionalism.

The course is taught by lawyers and judges selected by the Chief Justice. At each meeting of the

course, the Justice of the court, often the Chief Justice is present to speak. The course is in its 27th

year and has been taught over 200 times. Every lawyer admitted to practice since 1984 has taken

this course.

In addition, bar organizations began to focus on the perceived necessity of articulating

common concepts of professionalism reaffirming them after their gradual removal from ethical

rules. In 2009, Chief Justice Leroy Hassell approved the adoption of the Virginia Principles of

Professionalism stating that the principles had been created to “articulate standards of civility to

which all Virginia lawyers aspire.” The preamble to the Principles of Professionalism itself makes

reference to the role that Virginia lawyers have played in American history juxtaposing Thomas

Jefferson and Oliver Hill. The principles articulated below immediately hearken to the Canons of

1908. The Preamble and the Principles of Professionalism are set forth fully here.

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Preamble Virginia can take special pride in the important role its lawyers

have played in American history. From Thomas Jefferson to Oliver

Hill, Virginia lawyers have epitomized our profession's highest

ideals. Without losing sight of what lawyers do for their clients and

for the public, lawyers should also focus on how they perform their

duties. In their very first professional act, all Virginia lawyers

pledge to demean themselves "professionally and courteously."

Lawyers help their clients, the institutions with which they deal

and themselves when they treat everyone with respect and

courtesy. These Principles of Professionalism serve as a reminder

of how Virginia lawyers have acted in the past and should act in

the future.

Principles In my conduct toward everyone with whom I deal, I should:

• Remember that I am part of a self-governing profession, and

that my actions and demeanor reflect upon my profession.

• Act at all times with professional integrity, so that others will

know that my word is my bond.

• Avoid all bigotry, discrimination, or prejudice.

• Treat everyone as I want to be treated — with respect and

courtesy.

• Act as a mentor for less experienced lawyers and as a role

model for future generations of lawyers.

• Contribute my skills, knowledge and influence in the service of

my community.

• Encourage those I supervise to act with the same

professionalism to which I aspire.

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In my conduct toward my clients, I should:

• Act with diligence and dedication — tempered with, but never

compromised by, my professional conduct toward others.

• Act with respect and courtesy.

• Explain to clients that my courteous conduct toward others

does not reflect a lack of zeal in advancing their interests, but

rather is more likely to successfully advance their interests.

In my conduct toward courts and other institutions with which I deal, I should:

• Treat all judges and court personnel with respect and courtesy.

• Be punctual in attending all court appearances and other

scheduled events.

• Avoid any conduct that offends the dignity or decorum of any

courts or other institutions, such as inappropriate displays of

emotion or unbecoming language directed at the courts or any

other participants.

• Explain to my clients that they should also act with respect and

courtesy when dealing with courts and other institutions.

In my conduct toward opposing counsel, I should:

• Treat both opposing counsel and their staff with respect and

courtesy.

• Avoid ad hominem attacks, recognizing that in nearly every

situation opposing lawyers are simply serving their clients as I

am trying to serve my clients.

• Avoid reciprocating any unprofessional conduct by opposing

counsel, explaining to my clients that such behavior harms

rather than advances the clients' interests.

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• Cooperate as much as possible on procedural and logistical

matters, so that the clients' and lawyers' efforts can be directed

toward the substance of disputes or disagreements.

• Cooperate in scheduling any discovery, negotiations, meetings,

closings, hearings or other litigation or transactional events,

accommodating opposing counsels' schedules whenever

possible.

• Agree whenever possible to opposing counsels' reasonable

requests for extensions of time that are consistent with my

primary duties to advance my clients' interests.

• Notify opposing counsel of any schedule changes as soon as

possible.

• Return telephone calls, e-mails and other communications as

promptly as I can, even if we disagree about the subject matter

of the communication, resolving to disagree without being

disagreeable.

• Be punctual in attending all scheduled events.

• Resist being affected by any ill feelings opposing clients may

have toward each other, remembering that any conflict is

between the clients and not between the lawyers.

The concept of civility has grown to incorporate and recognize the commitment of the bar

to the ideals of the nation in the 21st Century. The focus of bar groups, including state bars such as

Virginia’s, on diversity as a fundamental goal and obligation of both diversity and access to justice

as fundamental goals for all practicing lawyers, has increasingly led to recognition by courts and

by the bar that civility includes treating all people equally and that our obligation as lawyers is to

provide access for all people to justice. While it is likely that eventually the principles of diversity

and access to justice may be incorporated as black letter ethical requirements in rules of

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professional conduct, the heartening continuity of principles of civility from Colonial times,

through today, is demonstrated by the resurgence of the affirmation of those very principles.

George Washington, as a 13-year-old, was tasked with transcribing the rules of civility. A

child today might do well to be tasked with writing out by hand the principles of civility adopted

by lawyers—such as the Virginia Principles of Professionalism. While these principles do not

address whether it is polite to chew with your mouth full or to eat meat off of the knife, they do

exhort the reader to “act at all times with professional integrities so that others will know my word

is my bond. . . act with respect and courtesy and to treat both opposing counsel and their staff with

respect and courtesy.” Further, the principles advise the reader to “avoid all bigotry,

discrimination or prejudice” and to “treat everyone as I want to be treated – with respect and

courtesy.” These are principles that George Washington would instantly recognize as the

obligation of a civilized person responsible to the community and as a lawyer to the bar.

The Current Resurgence of Interest in Civility and its Roots in our Jurisprudence

Virginia CLE and the George Washington Foundation offer this discussion and tour to give

each of you a new perspective on the tradition of civility and its integral part in the development of

our jurisprudence. George Washington and many other Virginians have served critical roles in the

creation and fostering of that tradition. During our discussions today, we’ll not talk not only about

George Washington, but also about Henry St. George Tucker, his grandson, Henry St. George

Tucker, III, Lewis F. Powell, Jr, Chief Justice Harry Carrico and others from Virginia who have

thought and written about civility, as well as non-Virginians like Alexis de Tocqueville, Theodore

Roosevelt, Louis Brandeis and Oliver Wendell Holmes to name a few.

In 1745, George Washington had been living with his older brother, Augustine, on Pope’s

Creek, Westmoreland County. He had hoped to attend school in England, but the death of his

father in 1743 prevented that and Washington began his education in Virginia. In 1745 he

returned to Ferry Farm just across the river from here, to the home where his mother and younger

siblings were living. As a 13-year-old, George was taught by Rev. James Marye, who was the

Director of St. George’s Church located on Princess Anne Street in downtown Fredericksburg.

Rev. Marye had been born France and studied under Jesuits before renouncing the Catholic faith

in 1726 and fleeing to England to become an Anglican priest.

It was during his first year of study with Rev. Marye that George Washington transcribed

from French the manuscript which became the rules of civility. Many of those rules address basic

manners—how to address a person encountered in the street, or which utensil to use at the table.

Fundamental to those rules, however, it the concept that respect for others, and behavior which

demonstrates that respect, is essential to the conduct of a thinking person’s affairs.

2

In the last two and a half centuries, the social landscape has changed in ways that would

perhaps have been unimaginable to George Washington. The democratization of information and

the emergence of an educated middle class particularly challenge the mannerly, even patrician

ways of the elite in colonial Virginia. In the practice of law, however, tradition and ceremony

have coupled with serious scholarly study to promote the continuation of an insistence on dignity

and civility as central to the rule of law.

Civility is not a birthright; just as George Washington studied, translated and copied the

Rules; lawyers in Virginia have long been schooled in the importance of decorum and the

traditions of integrity and civility at the bar. And today Virginia lawyers continue to enjoy a

national reputation for conducting themselves in a way to hold the bar above reproach. But the

“Virginia Way” has faced its challenges.

The day after a jury convicted Former Governor Bob McDonnell of corruption and

conspiracy, the Washington Post published an editorial pronouncing the demise of the “Virginia

way.” According to the Post, that hallowed tradition of civility, integrity and honor in public

service expired as the McDonnell wept in the courtroom.

The Post went on to assert, “At the least, the McDonnells’ verdict should disabuse the old

boys of their smug, self-righteousness and their conviction that the State’s egregious absence of

laws on public ethics is somehow all right. At the very least, it should end, once and for all, the

common cossetted view that legislation will not eradicate moral obtuseness. Of course it won’t,

but a vacuum of laws will only encourage it.”

If legislation cannot bring moral clarity, does its absence actually encourage moral failure?

This philosophical question deserves a better answer than the truism advanced in the Post

editorial. Ethics, by definition, are rules of behavior that a group agrees to abide by; a consensus

of how each must discipline their own behavior for the common good.

3

All of us understand that we are bound by ethical codes, and taught that these codes are

different from the laws of the State, i.e., The Ten Commandments, the Boy Scout Oath, the Pledge

of Allegiance.

Children are taught that self-discipline is the key to keeping any such oath. Self-discipline

determines how we behave when no one is looking. Oaths permeate our adult lives as well.

Lawyers, in particular, when admitted to the bar, swear that they will “Faithfully, honestly and

professionally demean themselves in the practice of law.”

In the same vein, lawyers are given the charge of disciplining each other. The profession is

allowed the privilege of self-discipline creating an additional responsibility to the public to meet

the terms of the oath at admission.

Virginia lawyers admitted to the bar are taught that the responsibility to “demean” oneself

as a lawyer meant a commitment to act in a way that was unselfish and above reproach. At the

same time, lawyers are taught to cherish the freedom from regulation accorded to those who were

duly bound to self-discipline in both its personal and organizational meaning.

Most Virginia lawyers are proud to be a part the Virginia bar and part of the “Virginia

way.” Many believe that Virginia is exceptional and that they are part of a tradition committed to

that exceptional condition.

Self-discipline is the cornerstone of the “Virginia way.” Keeping the promises we make is

fundamental to self-discipline. The Virginia State Bar exists, in large part, to protect the public by

ensuring that lawyers who practice in Virginia obey the Rules of Professional Conduct, and are

help to account and punished if they do not. The Supreme Court’s oversight of this process and

the dedication of Bar staff and volunteers, both lawyers and lay people, make the disciplinary

process function in a manner that preserves public confidence.

4

The development of the Rules of Professional Conduct and the process for administration

and enforcement of the Rules occupied a hugely central role for the Virginia bar, particularly in

the second half of the 20th century. Part of that focus address the expansion and democratization

of the bar as its membership grew closer to a reflection of the population is serves. The

demographic changes in the membership of the bar challenged the mannerly and somewhat

patrician traditions of practice from and earlier time.

The preamble to the Rules of Professional Conduct contains perhaps the most elegant

statement of what is expected of Virginia lawyers written anywhere. Dean William Spong, the

dean of the Marshall-Wythe Law School in the 1970’s and early 1980’s was fond of referring to

the preamble to the Rules, and then after a pause, looking at his students and saying, “I commend

it to you highly.”

In the preamble is the following language:

“Many of a lawyer’s professional responsibilities are described in the Rules of

Professional Conduct, as well as substantive and procedural law. However, a lawyer

is also guided by personal conscience and the approbation of professional peers. A

lawyer should strive to attain the highest level of skill to improve the law and the

legal profession and to exemplify the legal profession’s ideals of public service.”

Courts and scholars began to recognize the need to examine, identify and teach the virtues

of professionalism—including a commitment to civility as a cornerstone of good practice.

Initially the Virginia State Bar developed a course on professionalism to be required of all newly

admitted Virginia lawyers. That course, now known as the Carrico Professionalism Course, was

the first of its kind in the nation.

In 2009, the Virginia Supreme Court approved the adoption of the Virginia Principles of

Professionalism. Those principles, which had been prepared as a joint project of the Virginia State

5

Bar and the Virginia Bar Association, include the following preface from the late Chief Justice

Leroy Hassell, Sr.:

“The Supreme Court of Virginia endorses the attached Principles of Professionalism for Virginia Lawyers prepared by the Virginia Bar Association’s Commission on Professionalism. Having been unanimously endorsed by Virginia’s statewide Bar Associations, the principles articulate standards of civility to which all Virginia lawyers should aspire.”

Included in the Principles of Professionalism are the following:

• “In my conduct toward everyone with whom I deal, I should act at all timeswith professional integrity so that others will know that my word is my bond.

• Avoid all bigotry, discrimination and prejudice. Treat everyone as I want to betreated with respect and courtesy.

• Act as a mentor for less experienced lawyers and as a role model for futuregenerations of lawyers.”

Further, the principles require that

“In my conduct towards my client, I should:

• Act with respect and courtesy

• Explain to clients that my courtesy conduct towards others does not reflect alack of zeal in advancing their interests, but rather as more likely to successfullyadvance their interest.”

The significance of these aspirational principles articulated by the Chief Justice in the 21st

Century cannot be overstated. Virginia lawyers face real challenges going forward—the

increasing commercialization and automation of legal processes, the real and ongoing need for

diversity, and the critical and fundamental challenge of providing true access to justice. While

addressing those challenges, the rekindled interest in and the acknowledgement of the importance

of civility as a central obligation for lawyers suggests that those challenges will be met with

determination and grace going forward. George Washington provided early guidance for this

6

effort with the lessons he learned as a boy in Fredericksburg. His first rule: every action done in

company ought to be done with some sign of respect to those that are present.” And his last:

“Labor to keep alive in your breast that little spark of celestial fire called conscience.”

The Power of Civility in Uncivil Times—A Perspective from the Bench

This panel discussion focuses on judges’ perspectives on civility in the courtroom and the bar generally during a period spanning several generations. In Fredericksburg, like in many communities around the state, lawyers still in practice and judges who still sit occasionally recall a markedly different era in the practice of law. Just two generations ago smoking was allowed in the courthouse, and everyone with business in the courthouse was known to the court. Security was relaxed, the caseload was much lighter, and the bar was small.

The evolution of the practice of law nationally has radically changed the courthouse scene in all but the most rural jurisdictions in Virginia. The demeanor and attitude of the bar has changed as well—and its members have become more representative of the population.

Many aspects of the practice of law remain much the same. The rituals associated with courtroom decorum continue to an extent—but the real unifying constant is the value and effectiveness of civility: the ability of a lawyer who demeans herself professionally before the bench to accomplish her client’s object. Similarly, the courtesy and evenhandedness of the judge presiding over the courtroom continues to set the tone for a new group of lawyers and litigants.

The panel will look at civility in retrospect, as things are today, and looking forward to changes that will come what may and others that need to be brought about to continue the Virginia tradition of civility in the courtroom.

Looking Back: Practice one (or two or three) generations ago:

1. Much smaller bar.

2. Slower pace. Unusual to have matters scheduled in multiple courts the same day;lawyers got to observe other counsel arguing motions and trying cases.

3. Members of the bar knew each other, the court and often the litigants

4. Conventions of dress, speech were observed.

5. Concept of shame—most attorneys would be ashamed to be accused of being uncivil.

6. Closed group—most of people who participated in the legal system were white men.

7. Expectations were different; Role of lawyer in society less explored in media—pre LALaw. There was still a “Ladies Auxilliary” to the Fredericksburg Bar Association.

Looking at Today:

1. Many routines intact;

-rising when judge enters

-stating “May it please the court”

-asking for permission to approach the witness or clerk

-addressing opposing counsel appropriately

2. Areas of Challenge:

-security

-timeliness

-attire

-rudeness to court personnel

-rudeness to witnesses

-challenging the court—not accepting rulings

-body language

-objections during opening or closing

-interruptions

-discovery disputes

Looking Forward: The Value of Civility to the Bar and the Bench

1. Observations of counsel who effectively use civility.

2. Increasing insistence on civility by Court.

3. Obligation to lead from the bench.

4. Leveling the playing field—heterogeneous bar.

5. Encouraging collegiality as a way of strengthening rule of law.

NOTES

1. James M. Altman, Considering the A.B.A.’s 1908 Canons of Ethics, 71 Fordham L.Rev. 2395 (2003) p. 12422. Available at: http://ir.lawnet.fordham.edu/flr/Vol71/iss6/3 Note: this article is a lengthy and extraordinarily well written examination of the historical context for the creation of the 1908 Canons.

2. Id. At 2426.

3. Peter Geraghty, History of US Ethics Standards, Your ABA, Dec. 2016.

4. Oliver Wendell Holmes, The Path of the Law, Applewood Books, Bedford Mass.(originally written 1897).

5. Altman, Supra, at 2406.

6. Id. at 2406.

7. Id. at 2407.

8. Id. At 2408.

9. John T Phillips, II. George Washington’s Rules of Civility, Goose Creek Productions,Leesburg, VA 2005 p. 115.

10. Altman, Supra at 2409.

11. ABA – 1908 Canons – set out in Altman as the Appendix.

12. Id.

13. Louis Parley, A Brief History of Legal Ethics, Family Law Quarterly, Vol. 33, No. 3,(Fall 1999) American Bar Association, p. 638.

14. Id. at 639

15. American Bar Associationhttp://www.americanbar.org

RESOURCES

Books:

Wait, What? , And Life’s Other Essential Questions, James E. Ryan, Harper One, 2017.

Brief and appealing to all adult ages, this book offers invaluable wisdom and guidance (in extremely entertaining form) for having more effective discussion and interactions with others. Will be a classic

Political Tribes, Group Instinct and the Fate of Nations, Amy Chua, Penguin Random House, 2018

Yale Law Professor discusses factors and human instincts that contribute to current state of disunity in America - based on international experience and scientific studies of human neurobiology. A rousing introduction and inspiring epilogue

All Falling Faiths, Reflections on the Promise and Failure of the 1960s, Judge J. Harvie Wilkinson, III, Encounter Books 2018

Insightful memoir that shines light on the changes and unresolved threads from the 1960s at work in today’s disunity and alienation in America

The Soul of America: The Battle for Our Better Angels, Jon Meacham, Random House, 2018

A look at historic conflicts and division in America and their resolutions - to shed some light and hope on the present

The Right Answer: How We Can Unify Our Divided Nation, John K. Delaney, Henry Holt & Co. 2018,

Offering some interesting and concrete ideas, this is a discussion by a sitting US Congressman (who is running for office) of how elected leaders can make bipartisanship an essential characteristic of their public service

The Neglected Middle Class: Inequality, Race, and the Looming Economic Crisis, A. Mechele Dickerson, (forthcoming – Harvard University Press)

More books (as an exercise in expanding one’s perspective about experiences of the American “middle class” and the “left behind”):

Nickle and Dimed, On (Not) Getting By in America, Barbara Ehrenreich, Metropolitan Books, 2001,

Undercover journalist works in different regions in average, low-paying jobs to experience and record what life is like for the working poor

Detroit, An American Autopsy, Charlie LeDuff, Penguin, 2013,

An edgy, extremely raw Pulitzer prize-winning writer, LeDuff in this and his 2018 book, SH*T Show, The Country’s Collapsing and the Ratings Are Great!, exposes awful living conditions and hopelessness in pockets of post-industrial America.

Hillbilly Elegy, A Memoir of a Family and Culture in Crisis, J.D. Vance, Harper Collins, 2016

Memoir of one family’s “descent” in post-industrial America, it describes the alienation felt by the author as he succeeds in a privileged world against the odds of his family background

All Over But the Shoutin’, Rick Bragg, Penguin Random House, 1998,

Often called, “Shoutin’,” by Bragg devotees, this is the first in Bragg’s trilogy about his family that vividly and fondly depicts poor, rural (“hillbilly") life in the South in the 20th century.

Classic books presenting negotiation, mediation, and communication skills for lawyers, would be mediators, negotiators, and facilitators:

“beyond reason/Using Emotions as You negotiate,” Fisher and Shapiro, Viking 2005

“Difficult Conversations: How to Discuss What Matters Most,” Stone, Patten and Heen, Penguin Group 2010

“Getting to Yes, Negotiating Agreement Without Giving In,” Fisher and Ury, Penguin Group 1981 et seq.

Blog:

https://www.usnews.com/opinion/blogs/economic-intelligence/2012/08/31/washington-doesn’t-need-compromise-it-needs-creativity

Articles and Clippings:

• Towards A Better Way To Engage, Lessons From the Field ofNegotiations, Aram Donigian, Jeff Weiss, and Patrick Petitti,Coin Common Sense Magazine (included in these materials)

• October 2018 edition of The Atlantic, “Is Democracy Dying?”• January/February 2019 edition of The Atlantic, “Why Are We

So Angry? The Untold Story of How We All Got So Mad AtOne Another”

• Attached clippings

Organizations and groups providing community facilitation services to improve dialogue and community relations:

• US Department of Justice, Community Resource Service (CRS)“America’s Peacemaker”

Teams of conciliators and responders work in communities in theimmediate wake of certain crises like mass shootings to preventmore violence and facilitate dialogue to rebuild community trustand understanding – preventive training offered

• Better Angels

A nationwide nonprofit that assists communities and members of groups that are deeply divided politically or by other value/belief differences to relate to each other to establish some understanding and tolerance.

*A branch of Better Angels is active in Virginia, and is presentlyrecruiting needed volunteers. Better Angels Virginia offers skillsworkshops and convenes facilitated “Red Blue” workshops. DonnaMurphy is the current Virginia leader. She awaits contact viaJeanne Franklin from VBA members who wish to become involvedin Better Angels.

• Divided Community Project, Ohio State University St. MoritzSchool of Law – staffed in part by “alumni” of DOJ’s CRS (above), itfacilitates, trains and provides models for communities aroundthe country seeking to create dialogue to respond to crisis, and toimprove community environment and problem-solving to preventcrisis

• Urban Rural ActionPromotes constructive dialogue and joint community action toaddress shared social, economic, ecological, and politicalchallenges; strengthens relationships between rural and urbancommunities. Interested participants may contact ExecutiveDirector, Joe Bubman, at urbanruralaction@gmail.com

• Resolution Virginia

An association in Virginia of Community Mediation Centers that has offered community dialogue facilitation around community-policing and mental health services issues in Virginia. It seeks to expand such services to more Virginia communities and is recruiting mediators to volunteer in this work. You may contact Executive Director Christine Poulsen at info@resolutionvirginia.org

• School Listening Exercises

e.g. Fairfax School project – newspaper article included in“Clippings” attached here

Various university -based programs:

George Mason University School for Conflict Analysis andResolution (S-CAR), Arlington Campus. S-Car offersscholarship, research and graduate degree programs inconflict management and skills training in conflictmanagement. It also engages in community events tofurther community processes. Directly relevant to today’sprogram, S-Car is piloting a program in library and othercommunity settings to teach online literacy and conflictresolution skills in the digital/online world.

VCU Center for Public PolicyOffering, among other services, government leadership andexecutive training, coaching, facilitation

University of Virginia School of Architecture Institute ofEnvironmental Negotiation

Mitchel Hamline School of Law, Dispute Resolution Institute(MN) – e.g., Falcon Heights community inclusion project – acommunity dialogue facilitation (supported by grant fromAmerican Arbitration Association) following a policeshooting there

Johns Hopkins Civility InitiativeEstablished in 1997 under the leadership of the recentlydeceased Dr. P.M. Forni, author of “Choosing Civility: The 25Rules of Considerate Conduct.” And “The Civility Solution.”

RESOURCE ADDENDUM

Book:

Field of Blood: Violence in Congress and the Road to the Civil War,

Joanne B. Freeman, 2018

Organization working in community facilitation toward greater

understanding:

StoryCorps. Profiled this month in the Washington post, StoryCorps

provides mechanisms for virtual conversations between persons of

different backgrounds, beliefs, and opinions. The goals of StoryCorps

are a return to civility, end to polarization, and the recognition that it is

a patriotic duty to see the humanity in people with whom we disagree.

RESOURCES: ASSORTED CLIPPINGS

SUNDAY, FEBRUARY 18, 2018 • THE WASHINGTON POST

When our American identity -----Iave our iribes . T1lDlALIDI FROM Bl

and evidence dating back generations, in psy­. chology, sociology and anthropology, have es­

tabli&hedfirmlytbathuman oplnionsandemo­tkms. loyalties and affWatlons, reUglons and

, costoms, and even pereeptl.ons are shaped by am need to belong to a group - and by our ptOClivlty to ha1e rival groups. Experimental --------. • suQ1ectlwm spontaneouslyformtn..group 1oy.

>ecome more · mportaii.t than ,ur country?

lookreview : al'liesandout,.gmupantlpatbieswhenasaigned . to teams randomJy. Subjects will deny the evi-1y Jonathan·Rauch

dence of their own eyes to agree with those i--~~~~~~~- lll'OUDd.them,mm.Hthediscrepancyisblata:nt.

. 'lb.ere need be notrlggerfortrlbalism, nocao.se r he alDg1e most imporlantin- or conflict. Ifwedo notalreadyhaveatrlbeand tellectual trendofour'timeis a l'e880n to be loyal to it, we will create a tribe the popula:r rediscovery. at' and ummt a rationale. Some versions of this

uman tribalism. We ~ we behavior, such as loyal.ties to professlonal ad it licked. For rougbJy ~.000 aportsfranchises,~1·elativelybemgn. Others, ~humansranaround!nsmall; such as blind politlcal partisanship, can be annfshgroups,hunthlgaddJD&t.. .. ~malignant. ig together while varlously 1fl,4; K "Political fiibes," Chua, a law professor at ig or be.frlending other ' lftllll. · · takes stock. Her short book :relies on a utin the past couple of~ &mdfol of cue studies and eramples to draw e wised up and rep1acecl '*1 '1'<*.I: conclusions, so scholan will want to be >cialorga.niw:iou wltb ~ imtiouswitb it; but her accessible andprovoo­ized, mies-based instltatitP8= lld1e treatment sets up just the right public larket8 to orgudr.e our ~ eon:versation. She takes her argument in two des, electl.onstoOl'IBllize.Ollr»o}- dkections, one foreign. th~ other domestic. lcs and sclence to orgaobe_ov . Brltfahimpel'UllistBmadeasclenceofunder­tareb. for knowledge. 'lb satiaty ataDdfng the tribal structures of societies they ll' hanktslng for group= co1on1zed. In plaml such as Iraq and Afgbani­e traD8ferred our tribal st1n, where tbey privileged Smmis and Pash· omclanandcastetoabstraetlon& tuns to exploit trlbiL'l divisions, they pla,ed re the ConstltuUon and the._. fporites adeptly. Americans, being more ideo-11:erprlse system. The 'ftll81.1:I Jeglca.l and less cynical, have never been as ere spectacu1ar, a step change in good at dtridlngto conquer, but in earlier eras unanpotential.WebadflgorecUt wewereknowntodoitquitewell-byplttlng it. Or so we thought. Indian tribes against one another, for example, Only we co\ildn't fool Mol;b.er and by exploiting class divisions in the ca.m­ature. Amy Chua's compact, in- paign. to paclfythe Philippines. ghtfu1, disquietlng,yet ultima1e- More recently, however, antl-commmdsm ·hopefolbookisbotbaslgn.offbe andentbusiasmfordemocracybecameall-pur­discoveryoftheprtmae,oftrib- :pose prisms and often distort.eel Americans' lsmandalucldguidetoi'IJtimp)f.. -new. In Vietnam, Chua &l'gUes, the United dons. States mJsunderstood its adversaries as com­Science has shown that trlbaJ.- munist fanatics kowtowing to fo!eign spon­

lll is bard-wired. 'Experbnents son, when in reality, the North V1etoamese TBIBALd1I coNTINUm> ON u were motivated more by nationalism and etb·

nlc grievance. Later, in Afghanistan and Iraq, Americans imagined that democracy and peace would bloom once everyone could vote. Instead, vicious tnl>alism. erupted. "In many

l, ' ;. ,; ... : . . ·:;:; I*' .:;.· -._·. :•' 1 ,;.~lltfcij._:1

'-~,ojc!el h\,•.;;,.; .: :,ra.,··· .... ·. .. ... :

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::: ~ ~.:-.';.: ': >:~·:-; ::. •.. :~UIIIJ.::......'

POLITICAL TRIBES Group Instinct andthe Fate of Nations ByAmyChua Penguin Press. 304pp.$28

parts of the world, far from neutralizing~ hatred, democracy catalyzes tt,• Chua writes.

'lm'orlam, too, is often cJr1ven by tribal im pulses. Young people join radical groups il search of anidentltytheycan call their own; th groups desensitize them tooutsl.ders'humanit. and send them, off in suicide vests. "The key ti cont.em.porary Islamic terrorism lies in thep:ro liferationnotm.erelyoffundamentalistMusllJl teachings but of the belief that Muslims, as , group, are being attacked, bmnfflated, and peJ secatedbyanevllWestmienemy,"Chuawrltet Theworsttbingthe Untt.ed States can do, in tbl view, is to indulge in us-vs.-tbem rhetoric th.a helps mllitantislamlstswin comerts.

Chua's observations on international affain althougb. UNful and timely, will not smprls anyonewhohasbeenpaylngattention.Norwil shewinanorlglnalitypmeforrecomrnendln: that .Am.er1can int.emmtlonists be mindful Cl local ethnography and reaUstlc about nation bmlding.Moreinterestlng,andmorechail~ 1ng, is her tab on trlbaJism bel'e at home.

LlbMarltIJUa,inhisrecentbook"The One and Future. Liberal: After Identlty Politics, Chuadeerle&Americanprogress:ives'shtftawa; from.meuagestbatappealtoshmedvaluesm toward themes that dwell on ever-narrowiDJ group identities. The great mid-century clvl rights leaders sawthemselve8 aa delivering oi the promise- of the Declaration of Independ ence; Martin Luther gtng Jr.'s dream was th, American Dream. Pranklin Xameny, America' greatest gay rlghU advocate, likened his flgb for equality to the COXJlbat he waged a.gains totalitariaDism in World War IL During th, war, as he wrote in a 1961 brief to the Suprem, Court (seeking an end to.anti~ discrirnina tion in federal employment), "petitioner di1 not hesitate to fight the Germans, with bull~ in order to help preserve his rlghU and free dolD8 and liberties, and those of others." In hi lawsuit, he continued, he was flghtlng fo

· "those same rights, freedoma, and liberties, fo himself and others." He saw himself as adva.nc tngjusticefor all Americans, not as distinguish tnghomosemals from other groups.

Chuaseestheemergenceof som.ethingquit different: "A sbffl: in tone, rhetoric, and logi, has moved identity politics away from inclu sion-wbich had always been the leffs watcb word - toward exclusion and division.• Face book, she notes, lists more than 50. gende designations, "from gendel'Queerto mtersex tt

1'14)~~ ~es~ 11.~ l~~b\t ··----.- ·---- .. -

EZ BD ~ es

meets identity politics .. .. • ~ •

pangender." .Actlvisl3 competet.o be offended if theirpartlculatismls·notaclmowledgecL "Gay" becomea LGB, then LGBT, then LGBTQ, then LGBTQQJ.AAP and othervarlants-a termmo­logical balkani?-atlon that Xameny lived t.o witness but never accepted. "For today's Left," Chua. observes. •group bllDdnesa Is the' ulti­mate sin, because it Dl88ks the reality of group bierlu:chiea and oppresaioninAm.eriCL"

Polttlcal actloD8 beget equal and opposite reactioI1s. :Recent polling flnda that a IDl\10rity

1 of white Amer1cans - inc:lucJlDg about two-• thirds cl whit.es without college degrees and

tbree-foarl:ha of white Bepublicam - bel1e9e there is dfscrim1nation against white people 1n .America today. Whites, CbristiaDs and other tradttlonall,vpiwkqnhtampoupsaredevelop­ing theJr own narntl9es of beleaguered soli­darity and group vlctlmhood. and Steve Ban­non and Presldent 'lmmp are standing by t.o takeiheltcalls.

Two comequencea fellow, both troubling. America's un1qµ.e acb.tevement, for Chua, is its emeigence as a "super-group - the only one amongtbe~powersoftheworld. Wehave forgedanati~==-tranBcendstrlb-al polities-an does not belongt.o any subg!Oup. that Is stzong and capacious enough.t.o ho1cl IOpl:ber anjneredibly diverse popu1don, ma1dJlg \11 ill1 Amedcans. Thi8 at.atmwaabalckion; ttm pJ!edous."

Of eomse, in PJ.'8C.:l:lce, the k1ealof an.Amerl­cannesstbattran8eendaraceandetlmidt;yand an the other~ canJleftlrbe pedect1y attabled. But we c:au 8truale to that end, and we have bight a very long wa.v toW8l'd 1t, as !l can attest: Here I am, in America, ma.med t.o another man. 'llibalism of both right and left endangers pl'Ogl'e88 toward sharing the coun­try. Worse, it endangers the idea thatweahoul4 shue the country. "At clffl'etJmt times in the past," Chua writes, "both the .AmerlcaD Left and the American lUgbt have stood for group­t:raNcelMJ!Dgwmes. Neither does t.oday."

Moreowr, tribalism is a dynamic force, not a static one. It exacerbates ltselfbymaldng every group feel endangered by the others, inducing

· all t.o circle th• wagons still more tightly. "'D>day, no group in America feels comfortably dominant,"Chua writes. wrheLeftbeliewstbat rlgbt,wlng trlballsm - bigotry, radsm - is tearing the country apart. The Right believes that lefl;.wing tribalism - identity poUtk:s, political oonectness - Is t.ea:rfng the country

apart. They are both right." I wish l ' could disagree. . , •

Remedies?Chua sees hopeful signs. Psycho­logical research shows that'trlballsm can be counteredandOYel'COIDe byt.eamwork: byproj­ects thatjoin individuals in a common task on an equal footing. One such task, it tul'D8 ·oat, can beto reducetrlbalism. Inotherwordll;with consciOUB effort, humans can break the tribal spiral, and many aretcylng. "You'd neM"know it from cable news or social media,., Chua writ.es, "but an OWll.'1heoountrythere ue,s1gns of people trying to cross divldes and break out ofthelrpo]itical tribes." • . . .

Shelistse:xamples,andlcanaddmydwn:My invommlent with die Better Ange]s project, a grass-roota depolarizatlon movement tbat is gabdng 1:ractlon in communities ICJ.'088. the country, has convinced me that m11llons of Americans are hungry for conclliation ·and willing to work for it. Last llllDDler, at a'.Betll,r Angels workabop in Vhglnia, I watabecl, as eight'D:ump supporters and eight Hlllar)'CHn­ton npporte!S putldpated in a day of struc­tured interactlons. Under rules that encour­aged llsl:eningwithout challenging or proeely­tlzlng, they e&platned their values and' exam­ined their stereotypes. No one's political opinions changed (or were expected to), but everyone left the room feeling less anhfiu&and be11eving that ordinary people can 1lght back against polarlzation. • •

'llibaHsm is humans' default mooe. De-trlb­alizingrequirea effort.Americans' atavistic im­pulses got the betl2r of us because W8 ·grew complacent. Progressives failed to imagine that identity-mongering and 'Victim-worsbip­ing would not onlytake over the academy but could help elect'lhunp to the presidency: Now they know. Conservattvesfalledt.oimagln&tbat rage-mongering and conspiraey-theorliing would not only take over conaervatlw media but could help elect 'l\'omp to the presidency. Now they know. Those who hold witb''Wbat Chua calla group-tranacending values were caught flatfooted and are only beginning to gather their follCeS and find their '90kles: But they are assembling, andthetrlbalistshawlost the advantage of surprise. .

Jonalhan Rauch Is a senior fellow at the Brookln~ Institution and the author of "The Happlm18$Cu'tw: Why Life Gets Better After 50, • to be publlshectm May. · • • . ~

WEDNESDAY, JUNE 27, 2018 • THE WASHINGTON POST

PC Study' s finding for an age :of rage: Rudeness is as .contagious as a had cold

BY WILLIAM WAN

These are rude times we live in. . And many people find them­

selves struggling with how to re­spond. Do they fight fire with fire or try somehow to take the moral

· high ground? Surprisingly.scientific research

has quite a lot to say about it all. Trevor Foulk, who researches

organizational behavior at the University of Maryland, likens rudeness to the common cold: It's contagious.

"When it comes to incivility, there's often a snowballing effect. The more you see rucJ.eness, the

· more likely you are to perceive it from others and the more likely

· you are to be rude yourself to others," he said

The debate over civility kicked into high gear after a Virginia restaurant asked White House

· press secretary Sarah Huckabee Sanders to leave because employ­ees did not want to serve her. That followed the outright heckling of

· Homeland Security Secretary Kirstjen Nielsen as she ate at a Mexican restaurant in the Dis­trict. Some people, such as Rep. Maxine Waters (D-Calif.), have called for more such confronta­tions with 'D:ump administration officials. Others warn of a race to toe oottom and plead for an end to

. the boorishness. President 'D:ump opted for in­

• sultingthe restaurant, Waters and : others.

• • Sucli cycles - now repeated on , a weekly or even daily basis and spreading quickly online - are driven in part by our unconscious reactions, experts say.

• • In a 2016 study, Christopher Rosen, an organizational scientist at the University · of Arkansas, tracked employees over the

• course of their work days. He and fellow researchers found that in-

. dividuals who experienced a per­ceived insult earlier in the day would later strike back at co­workers. Using psychological tests, the researchers linked that reaction to lowered levels of self-control. •

"When someone is uncivil to you, it forces you to spend a lot of mental energy trying to figure out what's going on, what caused the rudeness, what it means," Rosen said in an interview Monday. "All that thinking lessens your capac­ity for impulse control. So you become more prone to be rude to others .... People, in a way, 'pay it forward.'"

In recent years, rising concerns over incivility - insults, conde­scension, dismissiveness and the

. like - have led to increasing re­search on the topic by social scien­ti$! and psychologists.

In a series of experiments, for example, Foulk and others showed that the more that people witness and experience rudeness, the more they are predisposed to interpret an action as rude and then act toward others in rude ways.

"Rudeness is interesting in that it's often ambiguous and open to ~nierpretation," he said. "If some­one· punches you, for example, we

· would all agree that it's abusive. But if someone comes up to you l!.Ild says·in a neutral voice 'nice shoes: is that an insult? Is it sar­casm or something else?" The more someone has witnessed

c.·1:,.,Jft-iini''· rudeness, "the more likely you are to interpret 'nice shoes' as dehl>er­ately rude."

In one study, workers were shown videos every morning be­fore work. On the mornings when those videos included an uncivil -interaction, the workers were more likely to interpret subse- · quent interactions throughout their day as rude.

In another study on negotia­tions, Foulk found that if someone · experiences rudeness from a per­son on the opposing side, the next person they negotiate with is highly likely to perceive them as rude, too. Even when the two ne­gotiations took place seven days apart, the contagion effect was just as strong.

"What is so scary about this effect is that it's. an automatic process - it takes place in a part of your brain that you are not aware of, can't stop, and can't control," Foulk wrote in a summary of his findings.

Other studies also suggest inci­vility by top brass - whether im­mediate supervisors or CEOs -has an outsize influence on the uncivil behavior of those below them.

But perhaps most worrisome is the effect of all this growing incl­. vility. MQ.until:],g- ~ . shows rudeness can cause employees to ~ chronically distracted, less pro­. ductive and less creative. Re­searchers have shown how incivil­ity can lower trust, spark feelings of anger, fear and sadness, and cause depression. One study found increased incivility at work had personal-life implications, such as a drop in marital satisfac­tion.

And two studies in 2015 and 2017 found that doctors and nurs­es in neonatal intensive care units who were scolded by an actress playing the mother of a sick infant performed much more poorly than those who did not - even misdiagnosing the infant's condi­tion.

.e results were scaiy,' one of the authors told the Wall Street Journal. "The teams exposed to rudeness gave the wrong diagno­sis, didn't resuscitate or ventilate appropr.iately, didn't communi­cate well, gave the wrong medica­tions and made other serious mis­takes."

Researchers have struggled in vain to. come up with ways to stop the spreading effects of rudeness. Those who studied the hospital neonatal staffs, for example, tried having the doctors and nurses write about their interaction from the perspective of the rude moth­er. Doing so made no difference.

From Arkansas, Rosen has a simpler suggestion. "When you experience incivility, it's impor­tant to take a step back and not act on your impulses. Do things that help you recover your ability to self-regulate, like exercise or tak­ing a break," he said.

At the same time, he acknowl­edged, "Our research shows peo­ple are often not even aware of their reactions and the way they spread negativity. So some of these recommendations for how to stop it are easier said than done."

william.wan@waJJhpotit.com

r.l More at washingtonpost.com/ news/speaklng-of-scl,nce

--------

This is the editor's letter in the current issue o/The Week magazine.

As you squeeze into a downsized airline coach seat that would be snug for a 9-year-old, you find a peacock in the next chair, warily eyeing you. Or a diapered duck. Or a pig (sans diaper). Or a large, growling dog. Absurd, I know, but entirely possible: Last year, Delta alone flew 250,000 service and "emotional support" animals brought by passengers who insisted they needed cats, turkeys, rodents, untrained dogs, and even a peacock to keep them calm at 30,000 feet. (The peacock, thankfully, was rejected.) Some of these animals have pooped in seats and aisles; others have bitten passengers and other support animals. If there's a single phenomenon that captures the spirit of this age, it's this one. As David Leonhardt put it inThe New York Times this week, the support animal is one more piece of proof we live in a culture that "fetishizes individual preference and expression over communal well-being."

The credo of this culture is simple and shameless: I am the center of the universe. What I want is what I need, and who cares how what I need affects you? This worldview, unfortunately, is promoted and magnified by technology that encapsulates people in a bubble of personal preferences. Thus it is that public places are filled with oblivious morons loudly running their mouths on smartphones, or plowing down crowded sidewalks with their ears plugged and their downturned heads buried in texts. In fetishizing individual expression, social media has fouled the virtual public square with bile and menace. In national politics, there are no longer any commonly agreed upon facts, no basic standards of decency -just tribes fighting for dominance. If you disagree, you're an un-American los_er. Am I reading too much into the story of the peacock on the plane? Perhaps so. But just wait until the next time you settle into an airline seat and there's a comfort creature with a sharp beak glaring at you.

William Falk, Editor-in-chief

F,bruu~ Jo1g

l WEDNESDAY, AUGUST 22, 2018 • THE WASHINGTON POST EZ SU

.New Virginia license plate seeks to build some co,:i~en~us in lth · · . 1commonwea

John ~

Can't we all just get along?

The answer is yes, at least according to the folks at Resolution · Virginia. That's an association that represents mediators, those

-iraineEl pl'Gfessionals who sit ,down with fractious parties -'divo:rcing parents, 1and1ords and tenant,$, employees and ~ - and try to gettllem on the same page. ' "I think people are talking so much these days about how !we're maybe becoming more "WlCivil and having trouble ~ with each other, especially when we disagree," 'Said Christine Poulson, · 'executive director of Resolution ·Virginia. "The work we do is to (try to bring people together." ; To that end, the group bas 'Uilveiled a new 11pecial license ·plate available to drivers in the ·coDlltlonwealth. It features the silhou.ette of a skyline - from a -clty to a farm - below. a 'multiracial group of arms 'holding up a globe. At the ·bottom are the words ·"Community Peaceb8llding!'

It's the group's second special ,.-~---- .. , ..... -·-- ... ____ --·· - ·--·-·-···-·-·- ··-·--.......... ... _. ______ . . . . . - . -- · - . .. ' / .

plate.In2007-whenitwas_ 'r • VIRGINIA • . ·,· known as the Virginia I - -Association for Community I i Conflict Resolution - the group I ~-- ,,. · .t:.i. , ,,,_ ,,ff;-:,.. ~--- ,__ ,/··-~. ,-- -~ ~ --··, \ l

"We rea1tzed the dove would . i U' r i 1' f !' \; !i i had a plate with a dove on tt. ;~. • ,al\ '0\0 ,· '\ i10,o , \ :0. 11

appeal to certain people but I i l j I I : I j I ! I anotherimageofpeace- , II j i rl ·i H J j buildingcouldappealtoa ~ '} • · : , ; \ } \ / ~ / . wholeothersetofpeople," "·-·y' ~-J ~----~ , .... Y ·-.. - - · " -.. ,/ I Poulson said. - _ - ......... - _ .-.I 1

The new plate was de8ilned by Dean Paris of Parts Design in 'Ill.koma Park, Md. His typical work includes designing · museum exhibits. I aslted whether he'd be keeping Im eyes peeled while driving, hoping to see his handiwork.

"Of course, I will," Paris said. "I'm going to be Community Peacebuilding license-plate spotting."

Paris said, the last project he . worked on that had such a visible presence in the greater world was the label for cans of Alpo dog food 30 years ago.

said Poulson: "The meuace that we wanted to give people was, 'We can do this. We can work together. We can make the world a better place when we .• are cooperating with eacll other and helping each <>*et?

"And it just so happens that

O£ANPAR1S

TIie new plate ralNs llllOlleJ' :lbr lle9olution VirglnJa, a mediation OJ'OI I llon. ltwas ....... J,y Dean Paris ofTakoma Park, Md.

while we were trying to come up with what design and message we wanted, the events unfolded in Charlottesville. It became even more relevant then. We wanted people~ be able to show· on their vehicle that they really support people coming together."

That's a lot to ask of a license plate. But mediators are nothing if not hopeful. When Poulson ran a mediation center in Roanoke, she and her staff would scan the newspaper each morning, looking for articles about lawsuits. Then they'd call up tile parties and say: "I understand this is going to

litigation. Would you be inte~ted in·coming in?"

It's benevolent ambulance­chasing.

"The challenge has always been to get in on the ground floor, to try to get in at the earlieststage,"shesaid."Most of our work happens after someone's already been in court,. unfortunately."

But doesn't it seem like no one really wants to get along these days? We'd rather scorch the earth than find common ground.

Poulson said consensus ~ be found when warring parties realize they have something in

common. Think of parents involved in a custody dispute.

"Even though they might rather wring each other's necks, because children are involved they're willing to work together," Poulson said. "We're always trying to argue that you never know when you're going to need that person. You never know when that person is going to come back in your life."

The Community Peacebuilding plates are available now. They cost $25, $15 of-which will go to Virginia's nonprofit community dispute-resolution centers. The last plate that Resolution Virginia sponsored raised more than $400,000.

Lessons on listening a.t · ~ Virginia.~. !· high school

In divisive time, studelJts are challenged to talk to

people they disagree with

BY DEBBIE TB.UONG .,

One student questioned ' her father about his conservative views on w rights. Anotbe:r approached a friend from cm.p aboutthelrclivergentopinions'on President 'ftump. And a tliird pressed bis cousin on his udent support for guns. ,.

In a cUmat.e of political md sodal divisiveness, when ~ media often doubles as an echo chamber, educators issued acbal­~ to 12th-graders at T.C. WU· Hams High School in Alexandria that seemed at once simple and extraordinary - find someone different from themselves-, with whom they disagJ'ee on a founda· tional issue, and talk.

It was an exercise in Hstemng and respectful disagreement,: an o~ for students te hear and learn from perspectives' dtt-ferent from their own. ·'

Students were, at first, relbc-tant. '

"Wm rea11y maid of talking to people that we disagree with," English teacher .Laurel 'Dl.ylor said.

LI8TEN]NG CONTl:NUlID ON' BS

-~

PHOTOS BY DAYNA SMITH FOR THE WASHINGTON I

TOP: English honors students at T.C. WIDiams High School In Alexandria dlseuss the results of their project, "Having Difficult Conversations." ABOVE LEFI': Aflnal paper sums up the hopes for the lesson, which aimed to t:eaeh students how to list.en to and discus divergent viewpoints. ABOVE BIGHT: English teacher Laurel Tqlor reads a children's book to illustrate different perspectives.

have just been mortified by the way we talk about difference in this country now:'

Students were directed to an­swer the same questions they posed to those they had inter­viewed.

What is it like to be you? What is your life like? What is it like to be known and

by whom are you known? They shared the answers with

their peers, leaving class with a deeper understanding of each

other. Tania Batista was surprised a

classmate she viewed as confi­dent and outspoken battled inse­curities. Marie Beke learned how a Canadian classmate's upbring­ing differed from the social ex-

Th, w~~~"°" J:>e.!t" .1 J:t1 .. J\S-

pectations she encountered the Ivory Coast.

The students found t weren't alone in navigating uncertainties of adolescence the pressure of what comes a: high school, of balancing stuc

witn-nc:>oarme: "I leamed that they go through

the same things that I go through," Dejah Coleman, 18, said. "I learned not to judge them so quickly."

It's a lesson students said law­makers and politicians should heed.

"They could do the same thing - get a better understanding of people," Coleman said. "They don't know what's going on down here, in the comm.unity."

Beke said: "I don't think they're listening to each other. I think they're doing what they think is best for them and what wm benefit them, not what will benefit everyone."

The exercise at T.C. Williams was planned weeks before a gun­man walked into Marjory Stone­man Douglas High School in Parkland, Fla., killing 17 students and teachers. It was planned before students who survived the shooting were galvanized into a force crusading for gun law changes.

'Ill¥lor, the English teacher, said the project at the Alexandria school illustrated the power of conversation to her students. But the Florida students, she said, convey "that there is a time and place to speak up and be bold."

"It sadly overlaps," she said. "I think all of those students wished they didn't have a reason to speak out. ... But I think in moments of crisis, your choice to speak up for the next potential victims says a lot about who you are."

The Florida shooting weighed on students as they considered the state of political discourse. Murphy, the 17-year-old who questioned his friend about 'l'rump, said he is dismayed that lawmakers seem unwilling to compromise and listen to differ­ent viewpoints on gun controL

That was evident, he said, when the Florida House of Repre­sentatives last week voted against opening debate on a bill banning the sale of assault-style weapons as shooting survivors watched from the gallery of the Capitol

"I would have been very dis­traught and really thought about who I was going to vote for in the next election," Murphy said.

tkb'bie.tru.ong@washpost.com

llu. W~h,..-,-hin R.sr :z \;it.luf

l WEDNESDAY, AUGUST 22, 2018 • THE WASHINGTON POST EZ SU

.New Virginia license plate seeks to build some com, senr.;us in lth · . ·. commonwea Can't we all just get along?

The answer is yes, at least according to the folks at Resolution · Virginia. That's an association that represents mediators, those

'trained p1'9fessional$ whe sit ·down w.ith,fractious parttes­fdwoJcing parents, landlords a.nd tenants, employees and bosses - and try to get ta.em on tile sattre page. ' "I think people are talking so 'much these days about how 'we're maybe becoming more llD.Civil and having trouble qt.Jking with each other, especially when we disagree," said Christine Poal8Ml, · 'executive director of Resolution ·Virginia. "The work we do is to 1try to bring people together." • To that end, the group has unveiled a new special license ·plate available to drivers in the ·commonwealth. It features the silhotlette of a skyline - from a ·ctty to a farm - below, a 'multirileial group of arms 'liolding up a globe. At the ·oottom are the words :"Com!Jlunity Peaceb1!dldmg."

It's the group's second special 1<---······· :-·----····--···-··-·-·---····-·-·---······ -··., ···-···- · · ·· · · -· , plate. In 2007-when it was · ( • VJDG ·INIA • . ·1, known as the Virginia ! - J.'-1 - I

=:::a~~:~:oup I; ~ ... · 0 ...... ~ O'":x or.:iil-'' o/···:,,., o··-·~ o···~~ ' had a plate with a dove onit. J1t, ~ 1 ~,, \ l \ ( \; \(• \ I "We realized the dove would · 1 W: I I

11· !l lj U 1

appeal to certain people but I i l I : j; I ano~er image of peace- I ! J

1\ i, '! q I j

building could appeal to a ,~ '/ , - J \ ; \ J \. , \ ; ,, ' ' ( /' .. / .,, whole other set of people; "e:v ~.,, · ~-·=' , ..... ~ ·. · .... ;;..,, ~ .. _,/ I Poulson said. -- - ~ _ .... I 1

The new plate was desilMd by Dean Paris of Paris Deaign in Tokoma Park, Md. m, -tnie&l work includes designing · museum exhibits. I aslted whether he'd be keeping Ma eyes peeled while driving, hoping to see his handiwork.

"Of course, I will," Paris said. "I'm going to be Community Peacebuilding license-plate spotting."

Paris saicl the last project he . worked on that had such a visible presence in the greater world was the label for cans of Alpo dog food 30 years ago.

satd Poulson: "The meuage that we wanted to give people was, 'We can do this. We can work together. We can make the world a better place when we .• are cooperating with each other and helping each othel':

"And it just so happens that

Dl:ANPARIS

'1'llle new plate raises ....,,. :tbr llesolution Virginia, a mediation oro• etlM, ltwas ..._.1,y Dean Paris of'lakoma Park, Md.

~ we were trying to come up wtth what design and message we wanted, the events unfolded in Charlottesville. It became even more relevant then. We wanted people tQ be able to show· on their vehicle that they really support people coming together."

That's a lot to ask of a license plate. But mediators are nothing if not hopeful. When Poulson ra.n a mediation center in Roanoke, she and her staff would scan the newspaper each morning, looking for articles about lawsuits. Then they'd call up tae parties and say: "I understand this is going to

litigation. Would you be inte~ted tn·coming in?"

It's benevolent ambulance­chasing.

"The challenge has always been to get in on the ground floor, to try to get in at the earliest stage," she said. "Most of our work happens after someone's already been in court,. unfortunately."

But doesn't it seem like no one really wants to get along these days? We'd rather scorch the earth than find common ground.

Poulson said consensus ~ be found when warring parties realize they have something in

common. Think of parents involved in a custody dispute.

"Even though they might rather wring each other's necks, because children are involved they're willing to work together," Poulson said "We're always trying to argue that you never know when you're going to need that person. You never know when that person is going to come back in your life."

The Community Peacebuilding plates are available now. They cost $25, $15 of which will go to Virginia's nonprofit community dispute-resolution centers. The last plate that Resolution Virginia sponsored raised more than $400,000.

Communication (Civility Plus)

COMMUNICATION POINTERS AND PROCESS TOOLS

We can learn from mediation skills, process and research what helps and does not

help people communicate better during dispute and upset. We can also adapt

features of the process to have better discussions in problem-solving and other difficult conversations.

• Have a few words or phrases at hand and even a process to offer to defuse

and bring things down in tense situations or when our own emotions are

triggered by something someone else says;

• People in conflict can and do find common ground when something

motivates them to, i.e., there is some benefit or reason for them to try to

compromise;

• It helps disputants to identify or be reminded of something they share and

want to keep that is larger than the fight they are having, i.e. - a shared

value, goal or purpose; it is easy to lose sight of what is held in common in

the heat of emotional turmoil;

• Introducing fresh information to a discussion helps people in the discussion

see (if not agree with) a different perspective, often changes the

conversation and puts it on a more productive path;

• Civility and improving how we communicate make a positive difference.

The following is a compilation of handout materials created for use in training

health lawyers and others about conflict management and mediation skills. When

things get hot it is important for everyone to cool down. Maintaining civility and

rationality can be hard no matter how intelligent, well-intentioned, and rational

we think we are. Maintaining civility can be difficult no matter how well we

understand our responsibility as legal professionals to comport ourselves with

decorum.

We also refer the reader to the article listed in the resources section and included

in these program materials, "A Better Way to Engage" by today's speaker, Lt. Col.

Donigian and others. It presents concrete, intelligent and sensible strategy in a

very real and difficult situation faced by military in Afghanistan.

Perhaps something in the following pages will help you communicate more

effectively.

LISTEN WELL

Not to reply or respond, just to try to hear what the other person is saying

Try to shut off the several tracks running in your mind while you are listening

Be still and just listen

We were given TWO ears and only ONE mouth for a reason

Epictetus

Good Listening: an invaluable tool not used often enough

Practice

ASK OPEN QUESTIONS TO HEAR, TO LEARN*

*Please read "Wait, What?" by James E. Ryan in which he explains the power of

5 simple, powerful questions

Cultivate curiosity: Be open to learning something new

BEWARE YOUR ASSUMPTIONS

Our perspectives limit us to the point that sometimes we are not even aware

there can be another view; we often don't know our perspective is limited

Deep listening can help us grow to understand how someone else sees or

experiences the issues

Understanding what another view is and why does not mean we have to agree

with it. We can at least begin to acknowledge it and perhaps find a

commonality, showing a kind of respect

Respect breeds respect

MIND YOUR MANNERS

Scientific study shows, as reported in the Washington Post on June 27, 2018,

that rudeness is contagious and destructive

What is rude?

(As in mediation) agree to conversation ground rules: e.g., no shouting, sniping,

interrupting, insulting, foul language, gesticulating rudely -

Watch out for inflammatory words, phrases, labels

Are labels a form of assumption?

Try these when talk is getting out of hand:

[When you speak too loudly, I cannot hear you as well]

[Can we remember our ground rules?]

[Can we or let's go back to .... talking as if we wanted to settle this?]

Model civil speech and manners

A Mediation/Facilitation Aid - Flipping The ABCs

(All Rights Reserved: from www.franklinsolutions.net)

We all sometimes play the same message in our heads over and over, reinforcing our positions

and opinions, inhibiting open minded inquiry, problem-solving and learning. Sometimes we

don't even know that is what we are doing. Perhaps it is especially true when we are upset

about the matter in which we are involved.

These are often the ABCs of fatigued, "old", or unproductive thinking:

A ssumptions

B lame

C riticism

To break the unhelpful thought pattern, try "flipping the ABCs:"

C huck the assumptions, at least momentarily, and ~heck out facts and perceptions

B egin again to frame(define) the situation

A cknowledge other facts, perspectives or possibilities

See what "flipping the ABCs" allows you to do in terms of improving the discussion and problem­

solving.

Some Thoughts for The Day

Jeanne F. Franklin

FranklinSolutions

• So much conflict involves poor communications - for example, there is none (no communication can amount to communication), or poor timing, or poor choice of words, or not thinking before we speak

• The classic, "What we have here is a failure to communicate"

,. -lP\ ft)) n "---~ n • Good communication takes practice - mindful use of skills (what are our

communication habits?) • Make time and space if possible; multi-tasking during communication

doesn't send a good message • Breathe • Listen to understand - to hear what the other person is saying - not to

prepare a response (Seek ye first to understand ... ") • Ask open questions to elicit information, as even toned as possible (not

to score points) • Feed back what you think you've heard - clarifies, corrects potential

misunderstanding. of what's been said • Most of us love to be heard • Acknowledge the other concerns, needs or perspectives • vVhen it is your turn, communicate what you want to convey • Beware your assumptions • Be careful of trigger words and phrases • See if you can identify together the issue for some problem solving • Maybe you need to talk a few times - take breaks to think, to gather more

information • Respect, hope, humor

"Don't forget to sing in the lifeboats!" Voltaire

(as we are reminded by Kathryn and Ross Petras)

One Conversation Strategy (adapted from mediation process)

Jeanne F. Franklin

FranklinSolutions

www.franklinsolutions.net

•:• Time / space - a "Step Back"

•:• Who should participate?

•:• Know your role

•:• What information will be needed?

•:• Allow possibility of more than one conversation

•:• Clear introductions of each participant

•:• Orient to the conversation - what it's about and how it will proceed

•:· Mind tone and communication skills

•:• Be real!

•:• Present information clearly and elicit information

•:• Listen carefully - summarize

•:• Expressions of sympathy as appropriate

•:• Be alert to and calm fears

•:• How can you reframe the issues/questions that are raised?

•:• Lead shared problem solving

•:• Discuss next steps so everyone knows where s/he is in the process

Responding to Conflicts:

A Pocket Guide to a Simple Process with Behavioral and Conversation Tips

I. Strategy: Purpose of any approach - Shed light not heat

Deflect/ calm the immediate situation Clarify what the matter is and assess scope and impact Identify goals of any resolution Explore alternate answers to the problem Agree on some resolution going forward (from a handshake to an action plan)

II. Strategy: A process

Make time and space Bring together necessary participants in discussion - will there be a facilitator or discussion neutral? Arrange to have necessary information available Make introductions as appropriate Orient everyone to the conversation - what it's about and how it will proceed (participants should know their roles in the conversation and some simple ground rules including confidentiality) Expectation that there may be more than one conversation Present information clearly and carefully elicit information Mind tone and communication skills Listen carefully and summarize what has been said (express sympathy as appropriate) Be alert to and calm fears Be real! Use reframing to keep people from sliding back into unnecessary emotional disagreement (Lead) shared problem solving Discuss "next steps" so everyone knows where s/he is in the process

111. Strategy: Some immediate responses

A. To promote progress in conflict management (calm roiled waters, allay fears, buy some time)

1. I'm sorry you are upset about ___________ .

2. Can you explain a bit more about ____________ so I can understand the issue?

3. Would you like my thoughts?

4. I understand you don't like my view. Let's try to work this through.

5. I need your help so we can deal with this. Would you please do this (write up the facts, come to a meeting, refer to our conflict

policy /process, etc.) so we can continue to discuss this?

B. To delay or deflect due to bad timing, but preserve the opportunity for conflict management.

1. I understand you are upset. Can we schedule a better time to discuss this?

2. Why don't we get the facts before we take any action?

3. We need some time to carefully consider this. Let me get back to you.

4. I hear you views/concerns. Let me think about it.

5. Thank you for your opinion. I will consider it as we work through this.

C. Phrases to avoid.

1. What is your problem now?

2. I have more important things to be concerned about.

3. You deal with it.

4. You always ____ (complain, exaggerate, agitate, etc.)

5. You never ____ (cooperate, follow through, do your share, etc.)

IV. Strategy: Use wisdom and communication tips in your discussion preparations and participation:

A. General: • Less is More - we don't have to say it all or at least all at once • Think before you burn your bridges • Put that letter in the drawer before sending (don't enter email address

until you sit on the message awhile and are sure about sending it) • Things said or done in anger often feel good but rarely work out well

in the long run ("I really told him!" Un huh .. . and then what ... ?) • Flip the ABCs (beware your assumptions)

B. Regarding the problem:

• [Remember the joy of deflecting - breathe - step back - bring it back down] • How do we think the other person will perceive what we say and how we say

it? • What might it cause them to do? Turn away? • What's the desired effect? • Can you think of one good thing you respect or appreciate about the other?

Is that worth something to you? Are you willing to say it out loud? • What might the other person really like to hear? • What would you (I) like the other person to be able to say about you (me)? • What would you like someone else to do for you? (i.e., how would you like to

be treated?) • Use open, thought provoking questions:

How does it benefit you to ....... (do or say or insist upon)? What is to be lost by ....... ? What would you like your life to look like in one year? Two years? What effect does this conflict and how we handle it have on that coming about? Are we part of something else? (a hospital community)? How is this matter and how we handle it affecting the larger community? Can we agree to minimize losses - real and potential - as we work though this?

C. We're Stuck - helpful phrases

• Let's remember and return to our initial idea - we'll work together to work something out

• [That] is talking about the past and that's real but can we focus for now on the future? ,., (avoid getting stuck in the "retread" assuming there has been sufficient review of that)

• If we can't seem to get out of hashing over the past what does that tell us? Is there something else we need to do? Can we address it differently -constructively?

D. Hope

•!• Solutions do tend to build on themselves; one or two smaller breakthroughs can open the way to other understanding or peace in the future

•!• People often act differently, even if subtly, once they've worked hard and reached some agreement - Honest! Be open to it.

•!• What's your wisdom?

,., Courtesy of John Settle, Settlement Associates LLC

All rights reserved: Jane Reister Conard, Jeanne F. Franklin, Jamie Baskerville Martin

A Communications Primer by Jeanne F. Franklin

www.franklinsolutions.net

Introduction to communication skills training

Not taught previously in medical school (or in law school for that matter) but coming into vogue as a

core capability that people working in healthcare services need for the future.

Why Communication skills are useful if not essential: • to improve dialogue (when building a group or partnership, holding it together or mending it)• to learn better and grasp a different point of view

• to motivate people to make changes together, to compromise

• to consider the longer term and not just short term• for quality improvement activity

• to strengthen patient relations and satisfaction

• in problem solving

• to avert unnecessary problems

• to minimize damage from unproductive conflict• at home and in the community

And ..... • Consider that communications can be part of the problem or part of the solution• There are 3 parts to communication: intended message, communication medium, message

received (perception) - lots of room for a miscommunication with ensuing fallout and

unintended consequences

Strengthen your basic skills:

o Listening: what it is and is not; pitfalls

o Summary/feedback: when and how

o Good questions (hardest to ask) - they are open, simpler, non judgmental, not sending a

message

o Reframing: to open conversation

o Acknowledging different perspectives

o Identify assumptions that might get in the way

• Attribution Theory- negative assumption

o Practice - self-awareness; be aware of your default

Some Tips:

~ Humor/Bon Mots - "Don't Forget To Sing in the Lifeboats" (Kathryn and Ross Petras)

To lift a room/ inspire or motivate

~ Avoid words and phrases: trigger words like but, why, never, should, always (Ottawa Med

Center Study)

"I know/understand how you feel" (Ken Feinberg Story)

The wrong apology

~ Check your assumptions!!!!

ABCs (my website)

~ RESPECT IS KEY,and

~ Run to the Roar

One informal conversation strategy or framework: Make space and time - retreat - a "Step Back"

Prep: Consider who should be in the conversation

Prep: What information will be needed

Introductions and orient everyone to the conversation - what is the conversation about?

--. Confirm agreed upon goals or purposes

Acknowledgements (e.g. if it is a hard discussion)

If you are leading the conversation, set forth structure or schedule

Might be mix of activities, presentation and facilitated discussion

Facilitate - lead though the structure

Patience - bear in mind possibility of more than one conversation

Use good communication skills

Take a break if something comes up and you need to think more

Next Steps

If it is a second or third meeting of an "ongoing conversation" begin by refreshing where you left off,

have a check in, what was learned and decided in earlier conversation, recycle the process (goals etc ... . )

Assess at some point

As appropriate (to the subject of the discussions) ask: How will we measure success? What worked,

what's changed? What might we try differently?

And, celebrate - acknowledge achievement

©All rights reserved, Jeanne F. Franklin, Franklin Solutions

PANEL SUBMISSION

"Toward a Better Way To Engage"

TOWARDSA BETTER WAY

TO ENGAGE LESSONS FROM THE

FIELD OF NEGOTIATIONS By Aram Donigian, Jeff Weiss, and Patrick Petitti

''My Soldiers are starting to hate Afghans and I am lookingfor help.

Why am I not surprised? After all, many AN SF seem to care less about succeeding than we do; most of the people are ''fence sitting" and not DOING anything to fix their country; and it seems that all the elders and GIRoA officials in my districts are corrupt.

What can I do to shape my Soldiers' attitude? Is it a lost cause? I'm out of options, and I'm hoping that others have experience and ideas on how to help Soldiers stay positive towardAfghans over the long haul of this deployment."

- A recent post to the U.S. Army's platoon leader forum

Text in redfi·o111.fie/d observations of.former West !'runt Negot,at10n l'roject (Wl'Nl') students.

e Magazine (http://www.isaf.nato.int/isaf-coin.html)

D he challenge of influencing Afghans to take action is real, and the resulting frustration, and even resentment, is certainly un­derstandable. Soldiers working tirelessly to help Afghans re­

build their country are faced far too often with a people unwilling to engage, never mind take any action. Worse yet, the more nothing hap­pens, the more the tendency there is to push harder, coerce and even , at times, to try to use threats to convince Afghans to make change . This in tum causes even more pushback from the Afghans , taking the form of ignoring recommendations , agreeing to consider them and then doing nothing, or just rejecting them out of hand. Unfortunately , or perhaps fortunately , the answer to the platoon leader' s post above lies in the reasonableness of the perception that "they don ' t care" and the strategies employed to try harder to change that. No Soldier is going to change their feelings or approach because they are told to or lectured on why they should . A Soldier is only going to change their feelings if they develop a new - and different - understanding of why Afghans often choose not to take action, and if they have a new set of strategies for persuading them to do otherwise.

The solution begins with the most basic tenet of negotiation - people do what they perceive to be in their best interest. If they believe a pro­posal is less satisfying than the benefits derived from their walkaway (doing nothing, stalling, doing what they have always done before , waiting for someone else to take action first, etc.), they will always say, "No." They are not evil, nor crazy. They are simply acting in their self-interest. Our job then is to first understand how they view our proposal, and then find a way to change their choice. To do this effectively involves skillfully implementing five strategies .

STRATEGY #I:

Interests

(Fears, Needs, Concerns, and

Motivations)

The Choice

UNDERSTAND THEIR CHOICE AND WHY IT'S IN THEIR INTEREST TO

sAv"No"

The most effective way to make people take action is to fully under­stand their choice. If you can put yourself in your counterpart's shoes and understand the question they believe they are being asked, and the perceived consequences of saying 'yes ' versus the benefits of saying 'no', you will be able to better understand why he is making a certain choice, and how you can influence his decision.

"The major project for several months was the building of a new school. It was just about.finished when it was destroyed one night. We engaged with the villagers to understand who had destroyed the school. At first, I tried offering food and clothing in exchange for information. They gladly took these items but offered no credible leads . I then tried being extra persuasive by explaining how this school would he ben­eficial for their children . They seemed to understa11d and even agree, but still would not give me any information. Finally. in frustration , I yelled that any additional help for this village would be conditional on their cooperating with us. At this, they walked away. We never

found out who had destroyed the school and could not get the funding again to build a new one. The enemy achieved their goal; we did not. After some reflection, l realized that my offer had not met their true fear: protecting their families from the enemy that operated in their village. Because I did not inquire about or creatively work to meet this concern, nothing else that I tried to do mattered. Their alternative (not angering the enemy and risking harm to their families) to working with me (taking the food and clothes in exchange for i11for111atio11 that might result in death) was clearly the better solution from their perspective."

Leaders are often unaware of the choice the other party has , as well as how to manage that choice. Had this leader spent the time to con­sider why the villagers were saying 'no' to his proposal , the outcome may have been different. The Currently Perceived Choice (CPC) Tool can enable leaders to systematically think about why their counterpart might be saying no to a proposal.

Currently Perceived Choice

Decision Maker: Villager

Decision: Sholl I today Tell the ISAF soldiers who destroyed the school

If "yes" I might experience the following consequences

Those that burned the village down will inflict har on my family

The enemies of the soldiers will kill me for turning them in

The so ldiers will eventually leave our village and the school will be burned down then, anyway

If "no" I will likely experience the following consequences

The US will continue to offer more (possibly better} + goods in exchange for the information

+ My family and I will be safe when the soldiers leave

Those who destroyed the school will see me as + loyal and will protect my family

The soldie rs' reaction will escalate to confiict in ourl They may not rebuild the school, so I have nothing - village + to gain

Even if the school is open, nobody will feel safe sending their children there

However we also mav exoerience:

+ The people that destroyed the school may be punished and justice can be served

STRATEGY #2:

+ I can always say 'yes' tomorrow

However we also may experience ·

The soldiers may leave and take with them the food and clothing

DEVELOP OPTIONS THAT MEET THEIR INTERESTS WELL

If you understand the reason your counterpa11 might say ' no' to a pro­posal and are able to recognize his concerns, you can then develop options that address those concerns and meet both of your interests. In the CPC above, the left column contains the interests and concerns of the villagers that are not met by the proposal. To change their choice, any option would need to meet those interests well . The best approach to developing good options is by engaging with your counterpart , ac­knowledging his or her concerns and interests, and jointly coming up with solutions that meet his interests and yours. Developing creative solutions and asking 'what would be wrong with this?' allows for a productive conversation that can lead to jointly beneficial agreements.

STRATEGY #3: TEST THEIR ALTERNATIVES AND FIND WAYS TO WEAKEN THEM

Of course, you would never agree to an option that was not better than your walkaway - your alternative to an agreement. In the CPC , the right column lists the villagers' alternatives to working with the pla­toon leader. When the walkaway is better than the perceived option, the choice is easy. Understanding and testing the villagers' walkaway would have provided an opportunity to weaken the alternatives, there­by making the option to work with the Soldiers more attractive. In the example above, would the Soldiers leaving lead to the Taliban con-

tinuing to terrorize the village? Would their families likely be more at risk? What other negative consequences might there be to this al­ternative? What if the Soldiers created a fading opportunity and said they would leave the village if no information was turned in by a hard deadline? If we do not test our counterpart's alternatives, we lose the chance to weaken their perception of them . Only when the left hand column of the CPC looks like a better situation than the right can we know that the option of engaging with us is better than the alternative, and that's what we need to persuade them to make the right choice.

STRATEGY#4: MAKE IT EASY FOR THEM TO DEFEND THE AGREEMENT

Just as you would not agree to an option that your boss and colleagues would disapprove of, your counterpart will not commit to something that he cannot defend to his commander or constituents and, even if he does , it is unlikely that he' ll be able to follow through with it.

"Prior to our arrival in the district, the local government had very little presence. Tribal elders and the sub-governor no longer met on a regular basis. Strong enemy pressure in the area had prevented the weekly shura from occurring. Our initial engagements with the sub­governor and chief of police were aimed at improving governance in the district by getting the Afghan National Security Forces to patrol on their own through the neighboring villages.

Previous efforts to achieve this outcome had proven unsuccessful due to the lack of confidence on the part of tlte Afghan forces to patrol on their own. They wanted coalition forces' support at all times. It took some effort to understand their concerns and to then brainstorm ways tltat we might meet what initially appeared to be conflicting in­terests. One solution we eventually decided to try was that the Afghans would patrol on their own to the village, while my platoon patrolled to the east approximately 2-3 km away. We were far enough away so they would have to deal with immediate issues on their own but close enough that we could quickly support them if needed. We also agreed to a communications plan involving a star cluster to signal us in case they made contact. We were both able to defend the solution to our commanders because not only did it meet both our needs, but it also served to demonstrate to the local population that the Afghan forces had the capability of patrolling alone."

In the case above the platoon leader engaged his counterparts in a meaningful dialogue , worked to understand their concerns , and asked them for ideas about how those concerns could be met. Just as impor­tantly, he recognized that his counterparts could only agree to an option that they could defend. As you put options on the table, it's important to discuss how they can be defended to you and your counterpart's teams , bosses, and constituents. If you are not able to do so, you may end up with an agreement that you will not be able to implement, and there is really no point to coming to an agreement if it doesn't lead to the necessary action.

STRATEGY #5: TAKE THE TIME TO UNDERSTAND THEIR PERSPECTIVE AND SHARE

YOURS

Having this type of productive conversation is not necessarily simple. It requires an open mind and curiosity. It is not enough to understand your counterparts ' answer - you need to understand their story. Even if you do not agree with their conclusion, learning how they came to it can uncover important interests and concerns and allow you to come up with better options. It also gives you an opportunity to explain your story and how you have reached your conclusions, thereby help­ing them understand the interests that are important to you. At a time when our ability to coordinate with our Afghan partners is challenged

14

(xplore Their Story

Their conclusions

~tnry YOU' StOIV

Explain Your Story

Your conclusions

Their Interpretations Your tnterpretations The Ladder of Inference is based on the work Argyris and Schon, building on S.I. Hayakawa.

What They Focus On

To Them

1f l I

lnform,itlon Avatllble to you both

-To You

What You f OCUS On See C. Argyris, R . Putnam, and D. Smith , Action Science (Jossey Bass, 1985).

and increasingly essential, it is critical to explore their perceptions and put yours on the table . The Ladder of Inference is a tool for exploring your counterparts reasoning path and perspectives and explaining yours.

CONCLUSION

Frustration leads to resentment, and resentment to anger, and there is plenty of frustration when faced with what feels like an untenable choice - (a) pushing harder and harder on the Afghans to take action, when this strategy has so often failed in the past, or (b) giving up , declaring it " their problem" to fix, and failing the mission . There is , however, a third choice. This choice is rooted in making it our problem to understand theirs (their perspective, diagnoses , goals, etc.), and using those insights to persuade. The leader needs to stop trying to figure out the answer to sell to the Afghans , and instead work to fully understand why they are rejecting our recommendations , proposals or assistance. Once our leaders do this , they can use what they have uncovered (Afghan interests, fears, and objectives) to build new proposals that better meet those interests , while providing ways to help the Afghans assess and defend saying "Yes" to one or more of these new options , and at the same time demonstrating to the Afghans that their walkaway (doing nothing , keeping the status quo , etc.) is far less satisfying than these potential agreements. Building and testing understanding with the Afghans while taking each of these steps is not only critical for success, but also has the very real potential of leading to Afghans taking on a new role in "the conversation" - from one of acceptor or rejecter of requests for change, to one of working jointly with leaders to invent, critique. select, defend and implement new ideas .

Strategies for a Better Way to Engage Key Pieces of Advice

Understand their Choice and why it's in their interest to say "No"

Try to look at the proposa l from your counterpart's point of view

Use the Currently Perceived Choice (CPC) Tool to understand the question they are hearing and why they might be saying 'no'

Test your filled-out CPC with an Afghan friend to get an additional perspective

Use the left hand side of the filled-out CPC to identify the interests and concerns that the current proposal does not meet

Develop options that meet their interests well Brainstorm options and ask for criticism - "What wou ld be wrong wi th this?"

Ask your counterpart to jointly brainstorm options - "What other solutions might meet your concerns and my objectivesr

Use the right hand side of the filled-out CPC to identify the wa lkaway alternatives that your counterpart Test their alternatives and find ways to weaken believes are better than the proposal

them Suggest ways that the alternatives may not actually be so attractive - " It seems to me that the implications

Make it easy for them to defend the agreement

Take the time to understand their perspective

and share yours

of that are X,Y, and Z ... am I missing something?"

Jointly identify the people that need to agree with t he solution in order for action to be taken

Consider people who may be against the agreement, and determine what their concerns might be and how you could address them

Explore their story and understand their perceptions and how that is leading to their conclusion

Stay curious - even if you don't agree with them, you can always benefit from understanding their story and hearing their interests and concerns

For more information on negotiation training , tools, and organizational support, please contact the West Point Negotiation Project at wpnp@usma.edu , Major Aram Donigian at aram.donigian@us.army.mil, Professor Weiss at jweiss@vantagepartners.cnm, or Mr. Petitti at ppetitti@vantagepartners.com . You may alsn visit the WPNP website: www.wpnp.nrg or read "Extreme Negotiatinns " by the authors in Harvard Business Review, November 2010.

Th e authors would like to give a special thanks to West Point Cadet DJ Taylor who highliF?hted the platoon leader '.~ question and asked the critical questions of "What would he your insight and response to this problem; how would you move ynur platoon past this:'"

Reprinted with permission by COIN Common Sense Magazine (http://www.isaf.nato.inUisaf-coin.html)

VI. Where lawyers, educators, community members and

The Virginia Bar Association can go from here

A possible vision

Brainstorm action steps

Your ideas and notes

CAN WE AGREE ON A VISION?

HOW WOULD YOU WORD IT?

Virginia culture

embraces civility and dialogue over violence and

destruction;

encourages civility and dialogue to manage conflicts

before they become more costly;

promotes civility and dialogue for individuals, families,

organizations and communities to learn, solve their

problems, form and strengthen bonds, and succeed.

1/30/2019

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presented by

The Virginia Bar Association

January 26, 2019

The Committee on Special Issues of National and State ImportanceDavid C. Landin, Chairman

andThe Joint Alternative Dispute Resolution Committee of The Virginia Bar

and Virginia State BarJames Cosby, Chairman

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Presenters

Professor A. Mechele Dickerson, University of Texas at Austin School of Law

Lt. Col. Aram Donigian, US Army, West Point Negotiation Project; and US Air Force Academy

Stacy E. Lee, Esq., President, Old Dominion Bar Association

James E. Ryan, President, University of Virginia

Moderating:David C. Landin

Jeanne F. Franklin

Consider that…

Peace cannot be kept by force. It can only be achieved by understanding.

Albert Einstein

The more we elaborate our means of communication, the less we communicate.

J.B. Priestly

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America is in a cold civil war…Carl Bernstein

Can we all just get along? Can we get along?Rodney King begging for calm during the 1992LA riots

History teaches us that men and nations behave wisely once they have exhausted all other alternatives

• Abba Ebban

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Program Goals

• Lift up and inspire the audience: we can do better

• Encourage individual responsibility for what each of us brings tocivility and communications in conflict and difficult discussions

• Begin to generate ideas for how the VBA and the educationalcommunity can contribute to elevating the culture

The Neglected Middle Class

Mechele DickersonUniversity of Texas School of Law

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(from the syllabus for the course)

As we work through the reasons the middle class is in decline in this country, you should not assume that my view on how to solve a middle class problem should carry more weight than the informed and rational views of your classmates. We will discuss broad and at times controversial current events and you must produce a feasible solution to the problem in a paper at the end of this course. Because of this, I have intentionally structured the class in a way that will require you to form or refine your views by working collaboratively with your peers and by being challenged by their views.

Employment and the middle class

Why are skilled trade jobs so stigmatized, sincethey may actually provide a better path to themiddle class than a college degree?

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• Socializing as we grow up. Our family and the media reinforce the values of a liberalarts education early on, while we make jokes about “bumbling” plumbers with poor-fitting pants. High schools isolate those choosing trade jobs on a campus away fromthe main school population.

• Trade jobs are more narrowly focused in what you learn, even though these peoplecan be brilliant in certain areas. People with traditional educations do notappreciate a lot of the creative problem solving and high-level thinking involved insome of these trades. As a society we seem to value a broad education, eventhough most of us will never use and likely forget a lot of it.

• The nature of the work. Trade jobs usually involve a lot of manual labor, comparedto sitting at a desk and thinking about issues. Society believes that a college degreeoffers a lot of flexibility and security that will continue into old age. The truth of thisbelief, however, is nebulous.

• There is a historical and racial aspect to the stigma. Acknowledging that tradejobs, often historically filled by immigrants and people of color, deserve morerespect for their important work serves to disrupt the hierarchy that mainstreamAmerica has relied on for a long time.

• People often fail to realize that the traditional education path is not foreveryone. Parents and peers give children that struggle in school a hard time,even though these kids may have skills and intelligence in areas that may makethem ideal for pursuing a trade. We view education as opening a wide range ofpossibilities. In reality, most people will pursue one career area that fits withtheir skills and interests whether they have a traditional education or not.

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The “upper” middle class

K-12 public schools in higher-income areas are generally “better”than those in poorer areas. The public schools are better resourcedand students typically have higher test scores. Students who attendthose schools also tend to have higher high school graduation ratesand college attendance rates.

To fix the inequalities we are seeing in K-12 education, is diversity ofwealth and socioeconomic background in schools necessary,beneficial, detrimental?

• Goal

• Socio-economic diversity in schools provides exposure to diversity ofthought and ideas that are highly beneficial to the creation of a moreequal, just, and empathetic society.

• Ideally, a circle could be drawn around schools, and the perfect amount ofsocio-economic diversity and perspectives will automatically attend thatschool.

• Problem

• The reality of geographic constraints, monetary constraints, and parentaldecisions make the achievement of socio-economic diversity in every highschool unlikely so it may be more beneficial to ensure that all schoolsprovide some minimum level of quality education.

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• Potential solutions to lack of socio-economic diversity in schools

• Zoning may be a solution. Magnet schools may be a possible solution.

• Zoning has limitations and neighborhoods naturally evolve with gentrificationover time.

• Magnet schools create tiers at schools that may not produce the desiredspillover effects from diversity of socio-economic backgrounds.

• Creating sister schools between schools with socio-economic differencesand busing students between the schools on Fridays.

• Increase opportunities for students to interact through competitions.

LTC Aram DonigianVBA Annual Meeting

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The West Point Negotiation Project

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Enhancing the ability of military leaders to negotiate in the complex, challenging situations they face during both war and peace.

The Negotiation ProjectFounded in 2009, in response to feedback from graduated cadets serving in Iraq and Afghanistan, the West Point Negotiation Project is a faculty effort to improve the ability of military leaders to negotiate. The Project is an activity within the Department of Behavioral Science and Leadership’s West Point Leadership Center.

www.usma.edu/wpnp

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My Own Failure

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Beginning to Do Better

Bottom Line of What We’ve LearnedIn the very context where one feels the most pressure to act fast and stake out an unwavering position – we can be more effective when we

• Get the big picture• Uncover and collaborate• Elicit genuine buy-in• Build trust first• Focus on process

From Extreme Negotiations. Harvard Business Review. November 2010.by Jeff Weiss, Aram Donigian, and Jonathan Hughes.

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Courage and a Good Question

Not “What do you want?”,

but “Why do you want it?”

Seeking to understand and solve problems side-by-side can unlock solutions, and build relationships, that were once unimaginable

An Example Scenario“The major project for several months was the building of a new school. It was just about finished when it was destroyed one night. We engaged with the villagers to understand who had destroyed the school. At first, I tried offering food and clothing in exchange for information. They gladly took these items but offered no credible leads. I then tried being extra persuasive by explaining how this school would be beneficial for their children. They seemed to understand and even agree, but still would not give me any information. Finally, in frustration, I yelled that any additional help for this village would be conditional on their cooperating with us. At this, they walked away. We never found out who had destroyed the school and could not get the funding again to build a new one. The enemy achieved their goal; we did not.”

From Toward A Better Way to Engage. Coin Common Sense, April 2012.by Aram Donigian, Jeff Weiss, and Patrick Petitti.

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What Can We Agree Upon?

• Helpful behaviors and actions

• A vision• A pledge?

• Innovative, collaborative efforts (with churches, schools, civic groups)addressing the divide

• Involve or be led by the young

Program Materials

• Significant additional material, resources, volunteer opportunities,and communication skills and strategies are in the handout package.

• Please download and consult your program materials:

vba.org/materials

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