Calls for Court of Appeals Innovations

Incivility Takes a Toll

Incivility among lawyers and judges continues to rate as a top concern in the profession. Respondents believe, by a hefty majority, that if the civility rules are to have true potency, they must no longer be voluntary, but rather be enforced somehow. This year, 76 percent subscribed to that position, compared to 77 percent in 1999 and nearly 75 percent in 1997.

Still, some may ask: Why all this fuss about civility, or the lack of it? A couple of new survey statements this year point to answers to that question. First, 78 percent of respondents said that incivility adds significant stress to their daily work as lawyers, judges, and court commissioners. Clearly, incivility is detracting from law professionals' enjoyment of what they do every day. Second, 89 percent of respondents felt that the reputation of the law profession has declined in the eyes of the public. Uncivil behavior may well be a key factor in that diminished reputation.

Part of what makes incivility such a tough problem is that it is at once both a cause and an effect. As survey respondents noted, incivility contributes greatly to stress on the job. On the other hand, stress can easily spawn incivility. As Veith observes, "It's hard to be civil and polite when you're overstressed. When I'm under lots of pressure, sometimes I'm not the nicest person to be around." Those words may resonate for many lawyers, judges, and commissioners, if they're equally as honest in their self-assessments.

Heightened consciousness about the need for civility may be beginning to improve the situation, says Milwaukee attorney Karri Fritz-Klaus, who has been an active civility proponent for years. Seminars, articles, and even bench-bar survey results have helped boost awareness. Still, abuses persist. "When I see that a particular lawyer has been hired on a case," Fritz-Klaus notes, "I say to myself, 'Okay, I know how this one is going to go down.' There are lawyers who will run you into the ground emotionally, financially ... and it's those bad eggs the public focuses on."

Debate continues to swirl around the question of how to enforce the civility rules, if they're to be no longer voluntary. Again this year, respondents gave the biggest vote to judges, with 90 percent agreeing that judges should enforce the civility rules. In fact, judges' average score of agreement outranked lawyers', at 6.0 versus 5.6 (6.4 among court commissioners).

One of many judges striving to find ways to foster civility in their courtrooms is Milwaukee County's Hansher, although his approach is, as far as he knows, unique to his county. At Hansher's suggestion, and with the approval of his judicial colleagues, the rules of civility, as spelled out in chapter 62 of the Supreme Court Rules, are now part of Milwaukee County's written scheduling orders. If he sees uncivil behavior, "I just say, 'You're not complying with paragraph eight of the pretrial scheduling order,'" Hansher explains, "and I can impose sanctions."

The civility rules became part of the scheduling orders six months ago, and Hansher has had to reprimand no transgressors since, although he did fine a lawyer for uncivil courtroom behavior a couple of years ago. "I think there's a general acknowledgement now among attorneys appearing before this court that they're going to be held responsible for any violations," he says. That applies, he adds, to any uncivil behavior he encounters during a case, whether inside or outside the courtroom.

Uncivil behaviors outside the courtroom, usually occurring during discovery processes, are the most difficult to catch. Only 53 percent of survey respondents agreed that judges sufficiently control discovery abuses, with, not surprisingly, judges' average score ranking higher than lawyers' (4.8 versus 3.8). The proportion agreeing was slightly higher this year, however, than 1999's 49 percent, which, in turn, outstripped 1997's 43 percent.

Milwaukee County circuit court judge Elsa Lamelas is among those judges who have tried to heed lawyers' calls for better control of discovery abuses. Acting quickly to nip problems during discovery sends a clear message, she says. For instance, if a lawyer calls to complain about another lawyer's obstructiveness during a deposition, "As much of an interruption as it is, I try to take a few minutes to respond to the complaint right away," Lamelas says. "In the future, if the lawyer causing the problem knows that I will take the call, maybe he or she will be less likely to do it again."

Respondents also indicated support for other enforcement channels. Sixty-two percent agreed that peer groups should enforce the rules, while 56 percent felt the Office of Lawyer Regulation (formerly the Board of Attorneys Professional Responsibility) should have an enforcement role. The latter idea won less favor among lawyers, with an average score of 3.8, compared to 5.0 for judges and 4.6 for court commissioners.

As for education about civility, 69 percent of respondents said mandatory CLE for lawyers should include at least one hour on civility rules. And 79 percent felt the same should occur in mandatory judicial education.

One final note: Judges and court commissioners, too, manifest uncivil behaviors at times, as noted in several respondents' anonymous written-in comments. And while judges can reprimand lawyers when they cross the line, lawyers have no such recourse.

The Stress Factor