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    Wisconsin Lawyer
    March 01, 2004

    President's Perspective

    Civility is always in style - no matter the century - and remains a matter of obligation of the legal profession.

    George Burnett

    Wisconsin Lawyer
    Vol. 77, No. 3, March 2004

    Civility is Always in Style

    Civility is always in style - no matter the century - and remains a matter of obligation of the legal profession.

    by George Burnett

    George BurnettIn many respects, the legal profession is a 19th century profession at work in the 21st century. We often advance values that seem more suited to an earlier era than to the present one. There are few better examples than the renewed call for civility in the practice of law.

    There is little doubt that the issue of civility is of prime concern to many lawyers. Respondents to our Bench/Bar Survey put the issue at the forefront of membership concerns.

    I had the privilege recently of listening to four prominent speakers on the subject. This column is a synopsis of much of what they said.

    There is no consensus as to the causes of incivility. Indeed, those who have thought about the matter suggest that there are many causes, ranging from the belief that a strident argument is an effective one, to a view that clients associate aggressive tactics with effective advocacy, to the fact that the practice of law is becoming increasingly global and therefore more impersonal. There are, of course, many other theories.

    These speakers made many insightful observations. Several mentioned that they were not without sin. One speaker said that in his early years he practiced law in the same way that he played middle linebacker. There are few among us who have not transgressed civility rules on occasion. But I am convinced that there are few among us who consistently treat our colleagues with disrespect. At the same time, from those few the level of rhetoric has become increasingly shrill and the accusations levied against colleagues more serious and frequent. This phenomenon has increased the professional stress that we all feel.

    This is a serious problem that cannot be solved easily or soon. Incivility is a problem that lawyers have made and that lawyers must solve. While the judiciary has a role in mediating these disputes, we cannot rely on judges to resolve them. That is true for several reasons. First, the press of the courts' caseload does not permit sufficient time to referee disputes between adversaries. Second, when these disputes are presented to courts, they often are presented far after the fact, on paper, and with accusations levied in each direction. It is very difficult for judges to accurately discern victims from perpetrators. Third, it is crucial for our courts to maintain the appearance of impartiality. Requiring courts to deal with incivility threatens to compromise that impartiality, because to deal with the problem, a judge must choose sides, and do so while in the middle of the controversy.

    That is not to say, however, that the judiciary should play no role. Our speakers noted that a chastening word or two from the bench often has a quick and quelling effect on the controversy. Even a quiet admonition to tone down the rhetoric can be effective.

    But to be the most effective, the solution must come from the profession itself. We must recall the admonition from rhetoricians long ago that invective is a poor substitute for argument. We must recognize that a strong condemnation of our adversary rarely transfers to his or her client. We must remember that judges are there to resolve disputes between clients, not lawyers.

    The speakers uniformly advised that we must be slow to anger. Rarely does an act of incivility demand immediate response. Reaction after reflection is almost always better, and after reflection, few among us will escalate rather than downplay the controversy. These exchanges are often a distraction from the main issue, and sometimes an intended distraction. The best response to an accusation is often a brief denial and a return to the main point.

    While the oath we took on entering this profession requires all to refrain from "offensive personality," the speakers remind us that the reasons for doing so need not be entirely selfless. One speaker noted that "the wheel always turns" and another noted that "those people that we meet on the way up are the same people that we are likely to meet on the way down." The courtesy and respect that we give is usually commensurate with the courtesy and respect that we will receive. A reputation for being difficult once earned is difficult to shed. Lawyers who treat colleagues with contempt and disrespect often are well-known, even among lawyers who have never met them. Reputation alone can make professional lives far more difficult than they need to be.

    The message from these eminent members of our profession is a simple one. Lawyers have created this problem and lawyers must solve it. It will require a conscious and determined effort on the part of each member of this profession.


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