The practice of law has always been subject to abuse by those outside of the profession.
This has been true throughout history even though, during significant periods of that history, the disparage lawyers were taking the lead in the founding of our nation and in fostering every significant social and economic development of that nation.
We have been constantly criticized, vilified and abused by anyone who was on the losing end of any courtproceeding and by those whose power or pocketbook was subject to challenge in a judicial proceeding. Some of the criticism of individual lawyers, even groups of lawyers, has been justified, but most of it has not. We have been able to withstand such criticism because of the irrefutable fact that the lawyers of this nation are the foundation of a system of justice that is the cornerstone of democracy. We are the advocates of those who find themselves embroiled in disputes and disagreements, the counselors for those whose lives are disrupted orbroken, and the advisers of those whose business and personal endeavors must be according to the lawsgoverning such matters.
We can deal with and survive the criticisms of those outside the profession, meeting those criticisms that arefalse and accepting and using those criticisms that are constructive. What we cannot survive is the deteriorationof the professionalism we extend to each other – the decline in the civility between lawyers.
The word “civility” may be misleading. It sounds as if we are talking about nothing more than social graces orsupposedly outmoded courtesies such as a gentleman walking on the curbside of a lady or standing when shewalks into a room. Without deprecating those old-fashioned customs, I suggest that we are talking about thedeterioration of something that can, and in some cases does, endanger the effectiveness with which ourprofession is practiced and our legal system is operated.
United States District Judge Marvin E. Aspen, in an article for the Valparaiso University Law Review, Val. U.Law Review, 28:513, quoted an exchange between two veteran trial lawyers at a deposition. Attorney V had justasked Attorney A for a copy of a document he was using to question the witness:
Mr. V: Please don’t throw it at me.
Mr. A: Take it.
Mr. V: Don’t throw it at me.
Mr. A: Don’t be a child, Mr. V. You look like a slob the way you’re dressed, but you don’t have to act like a slob. . . . . . . .
Mr. V: Stop yelling at me. Let’s get on with it.
Mr. A: Have you not? You deny I have given you a copy of every document?
Mr. V: You just refused to give it to me.
Mr. A: Do you deny it?
Mr. V: Eventually you threw it at me.
Mr. A: Oh,
Mr. V, you’re about as childish as you can get. You look like a slob, you act like a slob.
Mr. V: Keep it up.
Mr. A: Your mind belongs in the gutter.
Judge Aspen reports that this was between lawyers involved in a multi billion dollar lawsuit, and unfortunately it was reported in the Chicago Tribune, thereby receiving wide circulation.
We would like to pass this off as something that would only occur in the big city, and certainly we can say that itis an extreme example, but recent studies and the increased concern over such matters indicate that the incivilitybetween and among lawyers is growing to an extent that it is interfering with the effective administration ofjustice, civil and criminal. When lawyers are quick to characterize as a misrepresentation or a lie an allegation ina pleading with which he or she has a disagreement, when lawyers attack another’s position as motivated by anintentional effort to mislead the court, when lawyers conveniently forget that to which they have orally agreed,when trials become battles by personal attacks between adversaries, and when these things are not isolatedoccurrences by an identifiable few, we have a problem.
I do not believe that it is a problem that has infected the majority of our profession, but even if it has infected anincreasing minority of our profession, it is one which we must recognize and with which we must deal effectively.
The nature of the adversarial process
The seeds of incivility are present in any adversarial or combative engagement. We are adversaries, after all. Weare advocating a position on behalf of a client who has a dispute with someone else. That someone else has anadvocate, our adversary. Even in compromise one side will often feel that he or she has prevailed or beendefeated. We want to win. Often, the pressures are tremendous. There are pressures because of allegiance to ourclient, and pressures because we know that if we do not win, at least sometimes, we may see our practiceevaporate. Emotion becomes involved. The more emotion, the less reason. The adversary becomes the enemy.His or her conduct becomes suspect. He is trying to beat me; he is trying to hurt me. Is it any wonder that wehave a problem with civility in our profession?
Yet, as Gee and Garner, in an essay in The Review of Litigation, 15:169 (1996) point out, even deadlycombatants had their codes of civility:
Over the centuries, and throughout the world, those humans who have followed the contentious callings–eventhe deadly ones–have developed their own codes and striven mightily to conform to them, from the chivalry ofthe Medieval knights and the Code of the Samurai to the duelists on yesterday’s Field of Honor, from the fighterpilots in the World Wars down to the Sumo wrestlers, bullfighters and British barristers of today. Why thisshould be so is hard to tell, but so it has been: not logic but experience, as Holmes said in referring to the life ofthe law. (citing Oliver Wendell Holmes, The Common Law 1 (1881)).
All of the emotion and all of the pressure will surely drive us to the lowest common denominator unless webecome determined to take a different course. Surely, if those who are about the business of killing each othercan adhere to basic principles of civility, we can do no less.
The increase in the size of the bar If there is an increase in the lack of civility, however, it cannot be attributed to the adversarial nature of ourprofession. Those pressures have always been with us. What is different now?
One thing that is different is the increase in the size of the bar.
The number of lawyers has increased nationallybetween 1970 and 1990 from approximately 275,000 to nearly 800,000. The number of lawyers at the Tennessee bar has increased from 3,197 in 1970 to 7,108 today.
The fact of the matter is, we don’t know each other as well and to the same extent as we have in the past. Why has that had an impact?
When we were few in number, we knew each other; often we knew our adversary’s spouse and children. In thelate sixties and early seventies, up to a third of the Knoxville bar ate lunch at the S&W Cafeteria on Gay Streetalmost every day, and most of the offices were within a block of each other, in the Hamilton National BankBuilding, The Park National Bank, The Bank of Knoxville, the Valley Fidelity Bank, the Burwell Building, and the Empire Building. If you “messed over” a colleague, everyone knew it within 24 hours, and you were lookedupon with scorn and disdain. While the descriptions of office buildings and gathering places in other Tennesseecities and towns would vary, a similar physical proximity and familiarity could be described in all. There was asense of collegiality and peer pressure that was a deterrent to incivility.
To be sure, there were problems from time to time, such as the time one of our number ordered the opposinglawyer out of his office during a deposition, only to learn that he was in the other lawyer’s office. There wereabout a half dozen lawyers about whom the word was spread, “to get agreements in writing.”
But today, with almost three times the number of lawyers at the Tennessee Bar, we have the increased challengeof anonymity. It is far easier to attribute base motives to an adversary you do not know than someone with whomyou have dined and shared war stories. It is easier to misunderstand the statement of an adversary in a pleadingwhen that adversary is nothing or little more than a name at the bottom.
The increase in the spirit of competitiveness
Another cause of an increase in incivility is an increase in the spirit of competitiveness. Instead of a noble andlearned profession, imbued with the spirit that produced Jefferson, Madison, and Lincoln, there is an increasedtendency to view the practice of law as a business, just another way to make money, a commercial enterprise, inwhich the emphasis is on the billable hour and the bottom line. In a day in which even a small firm can have anastounding overhead, there is tremendous pressure to bring in fees – to make money. In this latter aspect, there isa tendency for a client to become “piece of business,” not a person who has come to you for help to solve aproblem in his or her life.
With the number of lawyers increasing faster than the population and faster than the growth of the economy,there is a substantial increase in the competition for the available clientele. There has always been a spirit ofcompetition, but one which results in lawyers having almost as many yellow pages as car dealers is far differentfrom just a few years ago. A spirit of competition which has resulted in writing letters to people who are injuredor arrested is the spirit of crass commercialism, not the spirit of a learned profession. Has this produced an edgeto our relationships and contributed to the deterioration in civility? Probably so.
The Age of Rambo and Clint Eastwood – No one wants to appear weak The kinds of tactics which have epitomized the increase in incivility have been called “Hardball” and “scorchedearth” tactics. They are also called “Rambo” tactics. Clients often speak of wanting the “meanest,” mostaggressive lawyer they can find. They have seen the Rambo movies. They have seen Magnum Force , starringClint Eastwood. The heroes of these movies always come out on top. They not only win their battles, they havethe respect of all around them. Don’t we want to be like that – strong, brave, disregarding all the rules to get thejob done? Civility has little chance in that arena.
Is civil or courteous behavior a sign of weakness? Ronald J. Bilson and Robert Mnookin, in an article entitled”Disputing Through Agents: Cooperation and Conflict Between Lawyers in Litigation,” published in ColumbiaLaw Review, 94 Colum. L. Rev. 509 (1994) said:
Those lawyers who believe that ‘scorched earth’ tactics are key to success in matrimonial litigation justify their’win at any cost’ behavior on the basis of zealous advocacy on the client’s behalf. In some cases this approachintimidates or wears down the opponent, resulting in victory for the offensively aggressive (and aggressivelyoffensive) lawyer. More often, however, such tactics simply cause delay and divisiveness, increase expense, andwaste judicial resources. Enlightened lawyers hold the view that courteous behavior is not a sign of weakness,but is consistent with forceful and effective advocacy. The spirit of cooperation and civility does not simplyfoster collegiality of the Bar, although that is a welcome side effect, but also promotes justice and efficiency in
our legal system.
Common sense will tell you that there is a great difference between being aggressive and forceful and beingmean and obnoxious. Perhaps one of the causes of the decline in civility is that we have confused the conceptsand, in doing so, have not only undermined the collegiality of the bar, we have greatly damaged our effectivenessas advocates.
Some feel that the atmosphere conducive to a decline in civility has been created, in part, by the advances intechnology during the last twenty years. Computers, overnight mail, and facsimile machines have helped create afar more hectic pace to the practice of law. When someone mailed a letter that you would receive three days later,he or she did not expect to receive a response the same day. Now a fax is often sent with the expectation that areply will be forthcoming within the next few minutes or at least during the same day.
You have a conversation with someone and within an hour may receive a letter that purports to memorialize thatconversation. If you do not respond immediately, you fear that your adversary will take the ensuing half an hourof silence as agreement, when, in fact, the contents of the letter are not exactly as you recalled the conversation. In the meantime, you are working on something totally unrelated which has to “get out” that afternoon. Now youfeel you have to stop what you are doing to respond. Meanwhile, three more calls or faxes come in. The pace, thestress, and the pressure are often unremitting.
Under these conditions, it is little wonder that we get edgy and civility takes a back seat. In fact it is just that typeof pace, stress, and pressure that have driven many lawyers from our profession.
Computers have also contributed to the strain between lawyers. If we still had typewriters, carbon paper, and nocopying machines, you would not see nearly as many pages of interrogatories and requests for admission thatbear little relation to the case at hand. Sloppy legal work can contribute as much to the atmosphere of incivilityas calling an adversary a bad name.
If in fact the legal profession has a problem with an increase in incivility, as it appears we do, what can we doabout it? We can look to ourselves, to the courts, and to the educational programs of the bar.
The first thing we must do is to decide for ourselves that conducting our relations with fellow lawyers and thecourts in a civil manner is not just the “nice thing to do,” but is sufficiently important to warrant our dedicatedeffort. Writing in the St. Thomas Law Review. Vol. 8, page 113 (1995), in an article entitled “Be Just to OneAnother: Preliminary Thoughts on Civility, Moral Character, and Professionalism,” Mark Neal Ironstone, said:
Generally speaking, civility is important because it frames common expectations about trust and respect inseeking resolutions through dialogue. Without such mutual confidence, there cannot be an effective meeting ofthe minds as a way to resolve social disputes and problems. Instead, individuals wind up talking past each otheror sinking to the lowest common denominator to strike a short term advantage or to achieve a cheap gain. Virtuesof any sort require much more in terms of human dependability and self discipline. They represent a concern fordoing what is right regardless of the circumstances.
Despite the abuse which lawyers have endured throughout history, and the increased abuse we have enduredduring recent years, we have a good reason to be proud of our profession. We should resolve that this professionwhich has given so much will not be destroyed from within. We will not “eat our own.” We will be strong andforceful advocates, but in a manner which does not destroy our professionalism, our collegiality, and oureffectiveness.
Recently I had an experience with an adversary that began on a sour note. A response to a routine motionsuggested, without foundation, that I was intentionally misleading the court. I was very upset upon receiving theresponse. I had barely met this attorney and my first impulse was to reply in kind, harshly and in the strongestterms. Instead, I responded in terms suggesting that perhaps there had been a misunderstanding, proceeded todeal with the issues factually, and gently suggested that making such allegations of misconduct withoutfoundation was detrimental to the process. A short time later my adversary called me and suggested that we havelunch. He said something to the effect that this was going to be a tough trial and perhaps it would be good tohave a friendly visit before we got into the thick of it. We did so, and established a rapport that carried us throughan otherwise highly contentious and hard-fought trial without rancor or further personal problems.
It occurred to me later that, even with a large bar, we do not have to remain strangers, and perhaps a lunch just toget to know one’s adversary on a basis separate from the litigation is one way to approach the problem.
Looking to the Courts
I think most of us would agree, for the most part, that we are fortunate to have the judges that we have in theState of Tennessee. They maintain orderly courtrooms while permitting us to try our cases. If lawyers are the firstline of promoting civility, the judges are the second line and a very important one. It is no secret that somelawyers will go as far and take as much advantage as they can. If the judge presiding over a proceeding in whichsuch a lawyer is participating takes control early and forcefully, much of that type of tactic would be avoided.
I had occasion to see Judge D. Kelly Thomas of Maryville, Tennessee, effectively illustrate that principle acouple of years ago. A prosecutor in his court made a remark which was personal in nature, casting aspersions onhis adversary. Judge Thomas immediately stopped the proceedings and admonished the prosecutor, saying thathe was not going to tolerate that kind of conduct in his courtroom. The prosecutor was an honorable attorneywho probably had been just caught up in the emotion of the moment, but he did not take that approach again, atleast not that day.
The judge sets the tone of the courtroom. If the judge is short tempered and uncivil, he or she invites incivility. Ifthe judge is firm in refusing to tolerate personal attacks and incivility by either side, an atmosphere conducive toa more orderly and civil trial will be created.
Looking to the Bar
Lastly, the Tennessee Bar Association and our local bar associations can do their part. We can focus on the issue,discuss it, and encourage the treatment of each other as we want to be treated. We can study suggested guidelinessuch as the “Proposed Standards for Professional Conduct Within the Seventh Federal Judicial Circuit.” Most ofwhat we find there should come automatically to an attorney who cares about our profession and our system ofjustice, but it certainly does not hurt anything to read them and use them as guides. Perhaps then we can return tothe day described by D.A. Frank writing for the Texas Bar Journal in 1939, when he said:
One of the finest characteristics of the legal profession is its good sportsmanship. To the casual observer . . .lawyers in fighting each other would seem to be perennial enemies. Yet, when a case is completed and especiallywhen court has adjourned, these same lawyers may be found visiting in offices and homes of their opponents, asfriends . . . No profession is so imbued with the chivalry of combat as the law. It thrives upon combat, contests,and fights. It does not engender hatreds, jealousies, and envy. It does produce respect, appraisement of ability,and warm friendship. 2 Tex. B.J. 357, 357 (1939).
We are fortunate in Tennessee to have a bar in which the great majority of lawyers want that type of relationship between and among the members of the bar. We have not strayed so far from that ideal that a little focus and alittle additional effort on our part will reverse the trend against it.
This article was awarded the Joseph W. Henry Award for Legal Writing by the Tennessee Bar Association.