The first of two parts.
In a speech to the American Law Institute more than 50 years ago, former Supreme Court Chief Justice Warren Burger suggested that “law professors should teach law students ‘that good manners, disciplined behavior and civility — by whatever means — are the lubricants that prevent lawsuits from turning into combat.’” (David A. Grenardo, “A Lesson in Civility,” Georgetown Journal of Legal Ethics, Vol. 32: 135, 138 (2019)).
More than 25 years ago, former Supreme Court Justice Sandra Day O’Connor noted that “greater civility increases a lawyer’s enjoyment of practice and the effectiveness of the justice system, while also improving the public’s perceptions of attorneys.” (Id., citing Sandra Day O’Connor, “Professionalism,” 76 Wash. U.L.Q 5, 8 (1990)). “Civility also makes a lawyer a more effective advocate for a number of reasons, including that decision-makers, such as judges, ‘are more likely to be impressed by an advocate who is courteous and respectful to the decision-maker, opposing counsel, the litigants, and the legal process.’” (Id., quoting Kevin Dubos and Jonathan E. Smaby, “The Power of Professionalism: Civility as a Strategy for Effective Advocacy,” 79 Tex. B.J. 432, 433 (2016)).
If Americans were to assess the civility of discourse by surveying social media or watching the nightly news, they might easily conclude that civility is in serious decline. In fact, a study published after the 2016 elections revealed that “93% of Americans felt civility is a problem in this country; 69% of Americans believed that ‘the United States has a major civility problem,’ and 75% of Americans responded that incivility had reached a crisis level.” (Id. at 147, citing Weber Shandwick, “Civility in America VII: The State of Civility” (2017)).
The 2023 ABA Survey of Civic Literacy found that 85 percent of Americans surveyed said that civility has only gotten worse in the last 10 years.
Long-held norms — things like honesty, fact-based advocacy or avoiding personal attacks — may seem like quaint ideas from a bygone era. Sadly, on occasion this trend toward incivility can be observed in Massachusetts courtrooms.
This is surprising at one level, because the rules requiring civility have not changed, but unsurprising given cultural norms that may be changing, whether we like it or not.
This is a good time to explore civility in the courtroom and identify why it’s a tradition worth keeping. This article offers, from the perspective of judges in courthouses throughout Massachusetts, several reasons why practitioners should opt for practicing civility and promoting the concept among their fellow lawyers.
We three judges — from District Court, Superior Court and the Probate & Family Court — canvassed our colleagues and assessed our own experience to offer practitioners these reasons to be civil. We try to go beyond the simple truths — that the rules require civility, and courtrooms are more pleasant when lawyers and parties treat others with respect — to include reasons that promote lawyers’ own interests and their success.
We also acknowledge that civility in no way should undermine one’s zealous advocacy for his or her client, and endeavor to illustrate the difference between zealous advocacy, which must be embraced by the bar and the court, and incivility, which must not.
Forceful arguing on behalf of your client is not a problem. Using unnecessarily inflammatory language, unfairly characterizing your opponent’s position, and refusing to cooperate on basic scheduling or discovery matters is the type of conduct we identify as being uncivil.
Any one of these reasons by itself justifies the choice of civility over incivility. We hope that the collection, provided in two installments, offers a compelling argument to maintain and cultivate civility in the legal profession.
- Incivility will not serve your clients’ interests.
In our collective 42 years on the bench, we cannot identify a single instance in which lawyers improved their clients’ chances of success by being uncivil or discourteous to an opposing lawyer.
A lawyer’s success in the courtroom, whether at trial or a simple hearing, will turn on the quality of argument, the cogent presentation of evidence, the power to persuade. Success will not derive from discourtesy, expressing extreme frustration at a ruling that’s not in your favor, or making it personal with opposing counsel (or a party or witness).
A judge will not be impressed with any of those things, and that can only hurt your case. Judges look to lawyers to clarify the issues in dispute, not confuse or distract them with unnecessary bickering. There are no circumstances in which a lawyer’s misbehavior will serve their client’s case.
There is little doubt that jurors feel the same way. Post-trial discussions with jurors reveal that they understand that lawyers will cross-examine witnesses in a manner designed to prove the witness wrong or undermine credibility. Jurors understand the adversarial system and can appreciate zealous representation. Jurors, like most people, do not like when assertiveness or good lawyering crosses into belittling or badgering another person or failing to treat others with respect — which includes everyone, from courtroom staff to a witness and even the attorneys or technical staff on the lawyer’s own team.
Just like experienced members of the bar know that being kind and courteous to the clerk running a court session might advance their clients’ interests, lawyers should understand that the way they treat everyone is likely to register with judges, clerks and jurors and may also help, or hinder, their success.
- Incivility will hurt your reputation.
It should not be news to lawyers that their reputation travels with them from case to case, judge to judge, and courthouse to courthouse. Judges talk with each other, as do clerks. Those lunchtime discussions concern not only the interesting issues and quality lawyering that surfaces in each courtroom; they may also concern how lawyers treat others.
Judges from across the state often meet, whether in person or via Zoom, for trainings and retreats on a variety of topics. Conversations about interesting cases, good (and bad) lawyering, and complex legal issues occur routinely across the commonwealth.
Lawyers should want court personnel to be recounting their powers of persuasion, their ability to concisely explain complex matters, or their rapport with jurors. Lawyers do not want them to be recounting an admonishment for arguing with opposing counsel or for ignoring the rules.
Given human nature, judges are not likely to divorce the positive qualities in the courtroom from uncivil antics or personal attacks. Advocates are responsible for the whole package!
Experienced practitioners seem to understand the importance of their reputation more consistently than newer attorneys. Perhaps civility used to be more central to lawyer training, or maybe the importance of reputation is best learned through experience, both good and bad. But it is never too early in one’s career to cultivate a reputation of honesty, integrity and civility.
Likewise, lawyers are likely to be held accountable for their actions and their reputation whether it happens to be your first or 50th trial or hearing. Trite but true: You’ll never get a second chance to make a positive first impression.
Sometimes newer attorneys think that in order to do their job well they are supposed to be overly aggressive and unforgiving in their tactics because they are afraid to appear weak in front of their client or opposing counsel. It is a lawyer’s responsibility to explain to his or her client the best way to accomplish the client’s goals, and as discussed, a lawyer’s uncivil behavior does not advance his or her client’s case.
In fact, in our experience, the most effective lawyers, the lawyers with the best reputations, tend to be the most professional and civil in their legal practice.
In certain practice areas such as criminal law and medical malpractice, lawyers are likely to run into the same adversaries in case after case. If attorneys unnecessarily exasperate or embarrass opposing counsel on one case, that experience will likely be remembered and may impact the future dealings involving that lawyer and his or her client.
Attorneys talk and share their impressions of other lawyers, so inappropriate behavior in one case could potentially alienate not just one prosecutor but all the prosecutors in their orbit. The converse is also true. If lawyers are collegial as an adversary, even while zealously advocating for their side, they may find more professional courtesies offered to them in return.
A good reputation is a valuable advocacy tool that should not be wasted.
In Part 2, we will provide additional reasons why practicing civility in the courtroom is a tradition worth keeping.
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Angela M. Ordoñez sits on the Probate & Family Court, Jennifer Ginsburg on the District Court, and Christopher K. Barry-Smith on the Superior Court. The judges thank their colleagues who reviewed this article, and especially Boston Municipal Court Judge David Breen for his contributions.
The above article is part of a civility series from the Massachusetts Bar Association Lawyer Well-Being Committee, which originally ran in the Sept. 20, 2024, issue of Massachusetts Lawyers Weekly.