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
In 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.
Wisconsin
Lawyer