OCBA UPDATE: Take the high road

By Judith Cunningham

September. Back to school, back to work, summer vacations are over, and it's another time in the year to begin anew, make a fresh start.

I'd like to encourage OCBA members to make a fresh start or take a new look at how we behave, how we treat each other. My thoughts on this topic were inspired by an article in the American Bar Association (ABA) electronic journal. A headline in late July caught my attention: "Jack Daniel's Cease and Desist Letter Goes Viral for Being Exceedingly Polite." The article concerned a cease and desist letter written by a female attorney who defends trademarks for Jack Daniel's whiskey. She sent the "exceedingly polite" letter to the author of a book, a satire titled "Broken Piano for President," whose cover design featured "old-timey, straight-from-the-saloon cover art" that had a striking resemblance to the Jack Daniel's Tennessee Whiskey label.

The ABA article quoted from the letter:

"We are certainly flattered by your affection for the brand, but while we can appreciate the pop culture appeal of Jack Daniel's, we also have to be diligent to ensure that the Jack Daniel's trademarks are used correctly. Given the brand's popularity, it will probably come as no surprise that we come across designs like this on a regular basis. What may not be so apparent, however, is that if we allow uses like this one, we run the very real risk that our trademark will be weakened. As a fan of the brand, I am sure that is not something that you intended or would want to see happen. ...

"In order to resolve this matter, because you are both a Louisville 'neighbor' and a fan of the brand, we simply request that you change the cover design when the book is reprinted. If you would be willing to change the design sooner than that ..., we would be willing to contribute a reasonable amount towards the cost of doing so."1

Isn't that a nice letter? Isn't it curious that being "exceedingly polite" rises to the level of a headline article in a national law journal? And isn't it even more astonishing that the letter went viral? Shouldn't politeness be the norm for our distinguished profession?

So as not to sound like Casper Milquetoast (or like a wimp, for those of you in Generations X and Y), I realize there are times when being exceedingly polite just doesn't work, doesn't get what your client needs or wants, or just is not an effective legal strategy. And in my experience working in Oakland County government for 30 years, I admit to my own moments of "intensity" when I have confronted employees who have repeatedly behaved badly or clients who have been consistently and unreasonably difficult. But before my intensity level gets too dramatic, I try, and similarly advise my staff in the Office of Corporation Counsel, to "take the high road." Try to work it out; in a word or two: be nice. Think of Atticus Finch in "To Kill A Mockingbird."

So as autumn approaches and we go back to school and back to work this month, let's think of some of those lifelong lessons we learned or should have learned in elementary school, and let's apply them to our practice: be nice, play fair, share, say you're sorry when you do something wrong and do what you can to fix it, clean up your messes, and to borrow from poet Robert Fulghum, "hold hands and stick together."

This month's column also gives me an opportunity to reiterate the OCBA's "Civility Principles" promulgated a few years ago. At that time the Honorable Wendy Potts was chief judge of the Circuit Court and she, along with OCBA Director Jim Parks, Tom Cranmer and others, worked on the "Principles," which were ultimately approved by the OCBA's board of directors and the Circuit and Probate benches.

In the context of the "exceedingly polite" cease and desist letter that inspired me, I want to mention one principle specifically: "Treating each other with courtesy, respect, and professionalism is not inconsistent with zealous representation of clients or the orderly administration of justice."

And in the larger context of most things and relationships in life, all of the civility principles can be summed up in one overriding rule: Do unto others ... The Golden Rule.

As you reacquaint yourself with our Civility Principles, let me suggest a couple of final thoughts. Please, please, please put your cell phones away and turn them off when you are attending meetings; when you are in restaurants having lunch or dinner with friends, colleagues or clients; and even (I wouldn't mention this but I have overheard cell phone conversations here several times) when you are in public restrooms! I realize there are occasions in work and in life when you may be awaiting a critical call or have some emergency situation that requires your cell phone to be turned on and handy, but I think it is exceedingly rude to be having lunch with someone who is constantly on the phone talking to third parties or with someone who is texting or responding to e-mails throughout a meeting. I have been tempted to walk out of restaurants in the middle of a meal or exit a meeting a couple of times during such circumstances, but I have not done it - yet. I remind myself to "take the high road."

And while I'm on the subject of taking that high road, let me finally encourage you to "take a hike" - that is, join us on Sunday, September 23, 2012, for Race Judicata. You can run or walk the 10K or the 5K course through the lovely residential roads and streets around Andover High School in Bloomfield Hills. I will be walking the 5K with my family. I hope you'll join us. Bring your family too; take a hike, hold hands, stick together and enjoy this fall season.

Until next month ...


1 I contacted the ABA to obtain permission to quote from the July 26, 2012, electronic journal.


Oakland County Corporation Counsel Judith K. Cunningham is the 80th president of the Oakland County Bar Association.

Published: Thu, Sep 20, 2012


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