Dangerfield on Civility, Vol. 1

// July 31st, 2013 // Uncategorized

Civility.   Perhaps no word gets thrown around more when lawyers start talking about the practice of law than civility; and for good reason.  I can’t say I’ve been practicing long enough to remember the “good ol’ days,” but in the nearly eight years I have had the honor to call myself a lawyer, I have seen enough “advocacy gone wild” to know things could be better; and apparently I’m not the only one.

A recent article in the Indiana Lawyer, “DTCI: As Attorneys, Conflict is our Business,” by Philip Kalamaros, takes an interesting position on the topic of civility.  In his article, Kalamaros writes that by simply calling for more “civility” in the practice of law, we are framing the conversation incorrectly, as the legal process is by its nature “not a fertile ground for holding hands and sharing.”  We should instead, he suggests, focus on recommitting ourselves “to the fundamental tenants of being honorable servants of a worthy process,” and that if we can do that, civility will follow. 

I think Kalamaros is right to re-frame the discussion in this way, but where I struggle is wrapping my mind around exactly what those fundamental tenants are.   To Kalamaros’ credit, he acknowledges the complexity of his “fundamental tenants,” calling it “elusive” and stating that “it’s a difficult concept to describe.”  Kalamaros, however, provides us with a few, brief examples of behavior (namely, lying, cheating, and taking cheap-shots) that, if eliminated, would make the practice of law more civil.  I couldn’t agree more; but what I think these examples are, are just symptoms of the underlying problem, which is, in the iconic words of Rodney Dangerfield, “I don’t get no respect.”

What the legal professional seems to be lacking at present (with certain members of the bar, in every state) is respect – respect for the legal process and for the fellow judges and attorneys of which they are all a part.  But wait, you say, aren’t I simply swapping one amorphous word for another, here? Isn’t “respect” just as difficult a concept to describe?  No, I say.  To me, the notion of “respect” is a much easier concept to model and wrap one’s mind around compared to Kalamaros’ “fundamental tenants.”  The question then becomes not whether our particular actions uphold the fundamental tenants of being an honorable servant of a worthy process, but rather, are our actions respectful to the judges and lawyers we work with, and to the legal profession itself.

The discussion, however, should not stop there.  Regardless of whether or not you agree with my lack-of-respect-is-the-root-of-all-advocacy-gone-wild proposition, the interesting question is, why now?  What has changed that has caused those good ‘ol days to be replaced with those where CLE seminars on civility are regularly run and well attended?

Although our growing reliance on technology in communication has enabled us to interact and socialize in ways we could not ten or fifteen years ago, it has also, unfortunately, allowed us to avoid more personal or face-to-face interaction.  It’s one thing to hide and take cheap-shots through emails, and another to engage in that sort of behavior in front of opposing counsel or others.  Email provides an impersonal avenue for the cheap-shot artists and personal jabbers to do their thing, and all without having to get out of their office chair or look anyone in the eye.

When you combine this rise in impersonal communication with a growing legal community, it is not difficult to see how some have come to ignore the concept of respect.  As the bar population increases, the number of those we know because we have been across from them before, or sat together at the last seminar, or had dinner at the last bar association banquet, decreases.  No longer do some feel the pressure of seeing opposing counsel at the next bar association function, or even working across from them again, in tempering their conduct towards them.  I would imagine it to be much easier to take that cheap-shot or make that personal jab at a stranger, than at someone you know you will work across from again or sit next to at next week’s banquet.

The solution – we should all get to know each other a bit more.  Let’s use technology and other forms of communication to bring the legal community closer together, and foster the concept of respect.  It may sound a little “touchy-feely” or akin to the first rule in a kindergarten class, but sometimes the best solutions, are the simplest ones.  True, the practice of law, by its very nature involving the taking of sides, argument, and advocacy, and parties may never hold hands and share their dreams with one another, but nowhere is it written that argument and advocacy cannot be done with respect.  Some of the best attorneys I have seen, take their respective side, craft their arguments, and advocate for their client, yet never waiver in their commitment to displaying respect for their opposing counsel, the court, and the profession.  They are tough opponents, but always play a fair game.   Acting in this way not only promotes characteristics that we should all strive to possess, but also encourages (or at least allows for) the opportunity for counsel to get to know each other better.  If we can bring the legal community closer together, maybe that will help us all get a little more respect.

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