Why civility still wins in the courtroom

As civility in public discourse continues to decline, we revisit how attorneys can rise above the fray and maintain a high level of civility and professionalism in the practice of law.

Is incivility practice specific?

Is attorney incivility and unprofessional conduct atmospheric? Should it depend on an attorney's specialty? There's a saying: "In criminal court, bad people come to court never looking better; and in family court, good people come to court never looking worse." The notion that bad conduct in family law adversely influences attorney behavior is enshrined in the State Bar of California's Attorney Guidelines of Civility and Professionalism. Family law practitioners are the only attorneys called out for special treatment. As if no other practitioner could possibly engage in this conduct, family law attorneys are admonished that they should "discourage and should not abet vindictive conduct, and treat all participants with courtesy and respect in order to minimize the emotional intensity" of the representation.

What family law teaches about accountability and empathy

But family law attorneys may not require special instruction. Much like their counterparts in criminal prosecution and defense, family law lawyers practice within a community, and there is real accountability when the same lawyers appear against each other in front of the same judges. We believe that family law practitioners benefit from the collegiality of a small and specialized practice and because they alternately represent both sides--one day a husband, the next day a wife. This cultivates empathy regarding the opposing position, unlike almost every other area of law practice. Civility should not be reserved for family practitioners. All lawyers enjoy the numerous benefits of a reputation for civility. Civility in litigation can lead to better outcomes, enhanced credibility, a strategic advantage in the courtroom and enhancement of one's professional reputation.

As stated in the recently revised Orange County Bar Association's Civility Guidelines: "Civility allows for zealous representation, reduces clients' costs, better advances clients' interests, reduces stress, increases professional satisfaction, and promotes effective conflict resolution."

Why civility is not a sign of weakness

While the benefits of civility are both personal and professional, a lawyer may dismiss these benefits for fear that in taking the high road, they may be perceived by their clients and opposing counsel as an ineffective advocate. Because of the impact of media depictions of lawyers in court and the changes in public discourse, many feel that they are advocating effectively only when engaging in verbal combat armed with personal invectives, attacks and hyperbole. Overly aggressive litigation tactics do not lead to long-lasting, positive outcomes for both litigants and the justice system.

Passion and civility can coexist

"Yet civility does not reduce the practice of law to an antiseptic exercise. Some of the most passionate and effective advocates for their clients also hold their adversaries, the Court, and its judicial officers in the highest regard. After all, passion can easily coexist with respect, dignity, and civility." People v. Whitus (2012) 209 Cal.App.4th Supp. 1, 14.

Civility in action: Confidence in the courtroom

Be the lawyer who leaps to the rescue when opposing counsel's technology breaks down mid-trial. Offering your equipment or the services of your technician sends a clear message that the opposing case need not be interrupted, because you are confident in your case and the expected outcome. Lawyers who practice civility and professionalism are perceived as more competent by judges. It takes a certain amount of confidence to overcome the temptation to match overly aggressive litigation tactics employed by the opposing side. Judges were once lawyers too. We understand how difficult it is to tame client expectations when it appears that the opposing party's tactics are working. Unfortunately, those tactics can result in increased fees to your client that may not be recompensed through sanctions.

Civility persuades courts

But, where it counts, attorney civility and professionalism should pave the way for a favorable result in the courtroom. This does not mean that a losing case can be converted into a winning one. It means that arguments made by a well-prepared lawyer are more likely to persuade a judge motivated to make a correct ruling. Almost any judge will tell you how difficult it is to stay abreast of all of the paper that comes into a busy public courtroom. When one set of papers is loaded with ad hominem attacks and another focuses on key issues and proposes specific solutions, the judge will inevitably turn to the latter for guidance. In this way, the civil lawyer has seized the moment and the uncivil lawyer has inadvertently silenced their client's voice.

Reducing burnout and supporting our courts

Civil lawyers reduce judicial burnout and foster an atmosphere that enhances a judge's ability to give attention to every aspect of the case. This is especially important in high-turnover assignments such as family courts. As stated by the court in People v Whitus (2012) 209 Cal.App.4th Supp. 1, 13, "[C]ounsel are considered officers of the court. The handshake at the end of the trial is not the only time when professionalism and civility are expected. It is demanded of lawyers at all times and at all stages of the case, no matter what the stakes involved. Especially in this day and age of distrust and cynicism, counsel's respect for the institution and administration of justice is critical." (emphasis in original).

Judges see lawyers who are civil as more competent. Much of the material that comes before a judge, especially in an all-purposes assignment, derives from interactions between counsel recorded in emails, text messages and sometimes video depositions.

Passing the torch of professionalism

In every sense, lawyers are always "on the record" when dealing with opposing counsel and clients. Lawyers are responsible for their own words and tone, as well as those of their trainees and subordinates. Associates mentored by intemperate partners may unwittingly take on some unfortunate attributes, potentially diminishing their effectiveness as trial lawyers later in their careers. As Justice Ruth Bader Ginsburg once said, "You can disagree without being disagreeable."

As lawyers, we have the ability to rise above the current level of rude and disrespectful discourse across society. When we do this, we reap the rewards of a solid reputation for stellar advocacy.

Disclaimer: The content is intended for general informational purposes only and should not be construed as legal advice. If you require legal or professional advice, please contact an attorney.