February 2000

Civility in the Practice of Law: Must We Be "Rambos" to Be Effective?

By Robert W. Ritchie

The practice of law has always been subject to abuse by those outside the profession. During significant periods of history, however, disparaged lawyers were taking the lead in founding our nation and in fostering every significant social and economic development.

We have been frequently criticized, vilified and abused by anyone who was on the losing end of a court proceeding and by those whose power or pocketbook was subject to challenge in a judicial proceeding. Some of the criticism of individual lawyers has been justified, but most of it has not. We have been able to withstand such criticism because of the irrefutable fact that lawyers are the foundation of a justice system 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 or broken, and the advisors of those whose business and personal endeavors must follow the laws governing such matters.

We can deal with and survive the criticisms of those outside the profession, meeting those criticisms that are false, and accepting and using those criticisms that are constructive. What we cannot survive is the deterioration of the professionalism we extend to each other — the decline in the civility among lawyers.

The word "civility" may be misleading. It sounds as if we are talking about nothing more than social graces or supposedly outmoded courtesies, such as a gentleman walking on the curbside or standing when a woman enters a room. Without deprecating these old-fashioned customs, I suggest that we are talking about the deterioration of something that can, and in some cases does, endanger the effectiveness with which our profession 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 in a multi-billion-dollar lawsuit. The exchange was reported in the Chicago Tribune. Attorney V had just asked 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 one 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.

This is an extreme example, but recent studies and the increased concern over such matters indicate that incivility among lawyers is growing to an extent that it is interfering with the effective administration of civil and criminal justice. When lawyers attack another’s position as motivated by an intentional 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 isolated occurrences by an identifiable few, we have a problem. When exchanges like this are reported in the Chicago Tribune, we have an even bigger problem.

I do not believe that it is a problem that has infected the majority of our profession, but even if it has infected only an increasing minority of our profession, we must recognize it and effectively deal with it.

The seeds of incivility are present in any adversarial or combative engagement. We are adversaries, after all. Even in compromise one side will often feel that he or she has prevailed or been defeated. We want to win. Often, the pressures are tremendous. There are pressures because of allegiance to our clients, and pressures because we know that if we do not win, at least sometimes, we may see our practice evaporate. Emotions become 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," you start thinking. Is it any wonder that we have a problem with civility in our profession?

Yet, as Gee and Garner point out in an essay in The Review of Litigation, even deadly combatants had their codes of civility:

Over the centuries, and throughout the world, those humans who have followed the contentious callings — even the deadly ones — have developed their own codes and striven mightily to conform to them, from the chivalry of the Medieval knights and the Code of the Samurai to the duelists on yesterday’s Field of Honor, from the fighter pilots in the World Wars down to the Sumo wrestlers, bullfighters and British barristers of today. Why this should be so is hard to tell, but so it has been: not logic but experience, as Holmes said in referring to the life of the law. (citing Oliver Wendell Holmes, The Common Law 1 (1881)). 15 Review of Litigation 169 (1996).

Surely, if those who are about the business of killing each other can adhere to basic principles of civility, we can do no less. All of the emotion and pressure will surely drive us to the lowest common denominator unless we become determined to take a different course.

If there is an increase in the lack of civility, however, it cannot be attributed solely to the adversarial nature of our profession. 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 nationally between 1970 and 1990 from approximately 275,000 to nearly 800,000.

The fact is, we don’t know each other as well as we have in the past. Why has that had an impact?

When we were few, we not only knew each other, but often we knew each other’s families. In the late 1960s and early 1970s, up to a third of the Knoxville, Tennessee, bar ate lunch at the same cafeteria almost every day, and most of the offices were within two blocks of each other, in one of five or six office buildings. If you "messed over" a colleague, everyone knew it within 24 hours, and you were looked upon with scorn and disdain. Across the United States, many cities and towns had a similar physical proximity and familiarity. That created a sense of collegiality and peer pressure that was a deterrent to incivility.

To be sure, there were problems from time to time. In Knoxville, there were about 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 bar, we have the increased challenge of anonymity. It is far easier to attribute base motives to an adversary you do not know than someone with whom you have dined and shared war stories. It is easier to misunderstand the statement of an adversary when that adversary is little more than a name on a page.

Another cause of an increase in incivility is an increase in the spirit of competitiveness. Instead of a noble and learned profession imbued with the spirit that produced Jefferson, Madison and Lincoln, there is an increased tendency to view the practice of law as a business, a commercial enterprise in which the emphasis is on the billable hour and the bottom line. In a day in which even a small firm can have an astounding overhead, there is tremendous pressure to bring in fees. In this latter aspect, there is a tendency for a client to become a "piece of business," not a person who has come to you for help to solve a problem 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. This level of competition, which has resulted in chapters of yellow page ads and letters to people who are injured or arrested, results in crass commercialism, not the spirit of a learned profession. Has this not produced an edge to our relationships and contributed to the deterioration in civility? Probably so.

The kinds of tactics which have epitomized the increase in incivility have been called hardball, scorched earth and Rambo tactics. Clients often speak of wanting the meanest, most aggressive lawyer they can find. They have seen the Rambo movies and Magnum Force, starring Client Eastwood. The heroes of these movies have always come out on top. They not only win their battles, they have the respect of all those around them. Don’t we want to be like that — strong, brave, disregarding all the rules to get the job done? Civility has little chance in that arena.

Is civil or courteous behavior a sign of weakness? In "Disputing Through Agents: Cooperation and Conflict Between Lawyers in Litigation," 94 Columbia L. Rev. 509 (1994), Ronald J. Bilson and Robert Mnookin wrote:

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 approach intimidates or wears down the opponent, resulting in victory for the offensively aggressive (and aggressively offensive) lawyer. More often, however, such tactics simply cause delay and divisiveness, increase expense, and waste 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 simply foster collegiality of the Bar, although that is a welcome side effect, but also promotes justice and efficiency in our legal system.

There is a great difference between being aggressive and forceful and being mean and obnoxious. Perhaps one of the causes of the decline in civility is that we have confused the concepts, and, in doing so, have not only undermined the collegiality of the bar, but greatly damaged our effectiveness as advocates.

Some feel that the atmosphere conducive to a decline in civility has been created, in part, by the advances in technology during the last 20 years. Computers, overnight mail and fax machines have helped create a far more hectic pace in the practice of law. When someone mailed a letter that you would receive in three days, he or she did not expect to receive a response the same day. Now a fax is often sent with the expectation that a reply 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 you may receive a letter than purports to memorialize that conversation. If you do not respond immediately, you fear that your adversary will take the ensuing half hour of 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 must go out that afternoon. You feel you have to stop what you are doing to respond. Meanwhile, three more calls or faxes come in. The pace, the stress and the pressure are often unrelenting.

Under these conditions, it is little wonder that we get edgy, and civility takes a back seat. In fact, it is just that type of pace, stress and pressure that have driven many lawyers from our profession.

If the legal profession has a problem with an increase in incivility, as it appears we do, what can we do about it? We can look to ourselves, to the courts, and to the educational programs of the bar.

The first thing we must do is decide for ourselves that conducting our relations with fellow lawyers and the courts in a civil manner is not just the "nice thing to do," but is sufficiently important to warrant our dedicated effort. In "Be Just to One Another: Preliminary Thoughts on Civility, Moral Character and Professionalism," published in the St. Thomas Law Review, Mark Neal Ironstone wrote:

Generally speaking, civility is important because it frames common expectations about trust and respect in seeking resolutions through dialogue. Without such mutual confidence, there cannot be an effective meeting of the minds as a way to resolve social disputes and problems. Instead, individuals wind up talking past each other or sinking to the lowest common denominator to strike a short-term advantage or to achieve a cheap gain. Virtues of any sort require much more in terms of human dependability and self-discipline. They represent a concern for doing what is right regardless of the circumstances. 8 St. Thomas L. Rev. 113 (1995).

Despite the abuse which lawyers have endured throughout history, and the increased abuse we have endured during recent years, we have good reason to be proud of our profession. We should resolve that this profession, which has given so much, will not be destroyed from within. We will not "eat our own." We will be strong and forceful advocates, but in a manner which does not destroy our professionalism, collegiality and effectiveness.

Recently, I had an illustrative experience with an adversary that began on a sour note. Without foundation, a response to a routine motion suggested that I was intentionally misleading the court. I was very upset when I received the response. I had barely met this attorney, and my first impulse was to reply in kind, harshly and in the strongest terms. Instead, I responded that perhaps there had been a misunderstanding, proceeded to deal with the issues factually, and gently suggested that making such allegations of misconduct without foundation was detrimental to the process. A short time later my adversary called me and suggested that we have lunch. He said something to the effect that this was going to be a tough trial and perhaps it would be good to have a friendly visit before we got into the thick of it. We did so, and established a rapport that carried us through an otherwise highly contentious and hard-fought trial without rancor or further personal problems.

Even with a large bar, we do not have to remain strangers. Perhaps having lunch with your adversary on a basis separate from the litigation is a positive way to approach the problem.

If lawyers are the first line of civility defense, judges are the second line and a very important one. It is no secret that some lawyers will go as far and take as much advantage as they can. If the judge presiding over a proceeding in which such a lawyer is participating takes control early and forcefully, much of that type of tactic could be avoided.

I had occasion to see a judge in a small town in east Tennessee effectively illustrate that principle a couple of years ago. A prosecutor in his court made a remark which was personal in nature, casting aspersions on his adversary. Judge Thomas immediately stopped the proceedings and admonished the prosecutor, saying that he was not going to tolerate that kind of conduct in his courtroom. The prosecutor, an honorable attorney who probably had been caught up in the emotion of the moment, did not take that approach again, at least not that day.

The judge sets the tone of the courtroom. If the judge is short-tempered and uncivil, he or she invites incivility. If the judge is firm in refusing to tolerate personal attacks and incivility by either side, an atmosphere conducive to a more orderly and civil trial is created.

Lastly, the American Bar Association, together with state and 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 guidelines such as the "Proposed Standards for Professional Conduct within the Seventh Federal Judicial Circuit." Most of what we find there should come automatically to an attorney who cares about our profession and our system of justice, but it certainly does not hurt to read them and use them as guides. Perhaps then we can return to the day described by D. A. Frank, in the Texas Bar Journal in 1939, when he wrote:

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 especially when court has adjourned, these same lawyers may be found visiting in offices and homes of their opponents, as friends. . . . 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).

Despite the problems that have become manifest, I strongly believe that 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 a little additional effort on our part cannot reverse the trend against it.

Robert W. Ritchie is Chair of the Federal Criminal Procedures Committee of the American College of Trial Lawyers. He is also a partner in the Knoxville, Tennessee, law firm of Ritchie Fels and Dillard, P.C.

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