This We Can Do

Vol. 18 No. 2

By

The ABA has urged its members “to set a high standard for civil discourse as an example for others,” in a response to the current state of our nation’s public life.[1]

Imagine your least favorite television commentator (or uncle) saying, “Really?  Lawyers as champions of civil public discourse?  Don’t lawyers actually exemplify the problem?” 

Notwithstanding such caricatures, there is good reason to have confidence in the legal profession.  While the incurably adversarial will always be among us, most lawyers indeed possess the attributes needed to model and promote civil discourse, something a growing number already do. The key to success, I propose, is a focus on purpose.

The purpose for which lawyers are being rallied to support and practice civil public discourse is the upholding of democracy.[2]  The vital link between public civility and democracy has been beautifully described by Justice Anthony Kennedy.  Civility, he says “has deep roots in the idea of respect for the individual. . .  We are civil to each other because we respect one another’s aspirations and equal standing in a democratic society.”[3]

This article speaks to the multiple ways in which lawyers engage in public life beyond their professional legal roles.  The following are the understandings and abilities all good lawyers develop that I believe serve them in “practicing” civil discourse.

Lawyers Understand That Different Roles Carry Different Responsibilities

Lawyers know that along with certain roles come particular obligations, liabilities and boundaries, so they are careful to clarify, and maintain, the roles they assume  in the course of their practice (e.g., agent, counsel, fiduciary).

Using this well-honed sensitivity, lawyers can perceive the distinctions of the role of public citizen.  Generally speaking, they are not agents but principals (acting and speaking on their own behalf); not authority figures, but peers.  Their voice is simply one of many.  In some capacities they even withhold their own views in order to support the self-determination of others.

The ABA Report accompanying Resolution 108 describes civil discourse as “first and foremost a personal obligation” about how to “conduct ourselves day in and day out”; in other words, in the multiple roles of our lives.

Lawyers Observe Standards of Professionalism

The ways in which lawyers exhibit professionalism in the practice of law serve them well in the cause of civil public discourse.  Some aspects of professionalism seem particularly valuable.

Preparation

When lawyers prepare, they learn the facts, research the law, understand their client’s goals, and explore other parties’ concerns.  They study the process in which they and their client are engaged.   They think ahead.

This approach to preparation can bring rigor to how one engages in civil public discourse.  Think for a moment about a town hall meeting.  Typically, its purpose is for government officials to speak to and hear from many community members.  Good preparation for a venue with this purpose could include thinking ahead about how to concisely present your viewpoint; preparing materials to leave with staff; cultivating an interest in, and perhaps knowledge of, what others might say; and anticipating how to constructively manage strong feelings (yours and others) if you think they may get triggered.

Reflective Practice

Because mistakes can potentially incur high costs (harm to our clients), good lawyering requires honest appraisal of our performance. Looking at “gaps” between what was intended and what happened is a good exercise, particularly when it comes to civil discourse. 

My colleagues and I at the Public Conversations Project teach an action reflection cycle as a method for examining and learning from the effects of one’s communication. The idea is to assess whether impacts match intention, and if they do not, to consider what one might do differently in the future.

There is a way to make this inquiry in advance.  Thinking about participating in public discourse, and wishing to support civility, we can ask ourselves:

What tone and language, and what quality of listening are most likely to let me convey my fervent convictions while also supporting a reasoned and respectful discussion that expands understanding of the issue and invites others’ participation? Conversely, what speech and conduct could work against these outcomes? 

If we are lawyers considering how to make appropriate use of our specific abilities, we can also ask ourselves a more personal question: 

Given my purposes and knowing myself, what do I want to bring forward into this situation and what will I want to hold back?

Responses might be along the following lines:

My ability to analyze and reason will be helpful here.  But my skill at cross-examining will certainly not be.

I’m used to speaking on behalf of other people.  Here, though, I’m going to need to restrain that role and speak for myself, allowing me to share my own experience. 

I usually work hard to give people confidence that I can solve their problems for them.  But that won’t help achieve the goals of this meeting.  I need to hold back that urge and instead encourage everyone to contribute to solving this dilemma together. 

As a lawyer I like to hold the floor, so I will need to apply self-discipline in order to monitor how much I talk. [4]

Practicality: What Will Work?

People come to lawyers to have important things accomplished, be it a contract or a divorce.  They come seeking advice for deciding among possible courses of action.  The lawyer’s bottom line always involves considering the likelihood of achieving the client’s goal.  What will work?

Law professor Andrea Schneider’s research on negotiation styles indicates that what most lawyers think “works” in negotiating, something lawyers do constantly, are non-adversarial modes of communication and a problem-solving orientation.  Specific attributes of lawyers judged as the most effective negotiators include: “personable,” “rational,” “realistic,” “perceptive,” “communicative,” “self-controlled,” “adaptable,” and “did not use derogatory personal references.”[5]  What works best for negotiation, works as well for civil discourse  

The lawyer’s “what works” attitude is also useful for civil discourse in another respect.  Few public issues are so simple that a single actor, single resource or single strategy can address them.  Pragmatism promotes a recognition that many actors will be required in order to adequately address a complex challenge.  This makes it practical, necessary really, to regard everyone and everything as potentially part of the solution. That in turn calls for considering the positive capacities of all the people, groups, and institutions whose contribution is needed.

Constant Learning

Lawyers are continuously learning, not just about the law, but also about the worlds of their clients and the contexts of their problems.   Taking on a new case or a new client nearly always initiates a process of exploration and investigation.  Lawyers are trained to know what they need to know.

A willingness and ability to learn are strong assets for practicing civil discourse in several respects.  One, if there are things to be learned, listening carefully to others is necessary.  Listening is essential to civility.   Second, recognizing we do not have the full picture, we know the possibility exists that the way it looks now is not how it will look after learning more.  Openness to where learning might lead us, is a strong asset for civil discourse.  It encourages us to test our assumptions.

A bent for learning may also serve the lawyer in a very different way.  Concern about civil public discourse can draw one into a wide range of topics including communication theory, deliberative democracy methods[6] and even brain science.[7]  These are intriguing topics to explore.

Lawyers Have Directly Applicable Skills and Abilities

Asking the Right Questions

Attorneys ask questions to elicit facts and opinions, matters they want to know or want a decision-maker to know.  Sometimes their questions are designed to draw out weaknesses of opposing parties’ positions.  Their questions match their purposes.  This means lawyers know how to consider what questions would best serve the purposes of civil discourse.

When what is called for is encouraging participation, supporting reasoned deliberation and expanding understanding, we need our repertoire to include questions that welcome clarification, surface underlying concerns, communicate interest in what is really valued, and check assumptions.  For example:

Is there some experience you’ve had with the city that would help me understand where you’re coming from on this issue?

What’s at the core [the heart] of your concern about [this school curriculum]?

I’ve had the impression that your group opposes any kind of development. But is that impression really accurate?

There are questions, too, that aim at helping someone (including yourself) to entertain a different perspective: 

I’m wondering about how a trusted person or a group not in the room would see this situation.  What might they say to us?

Attending to Process  

Lawyers understand that how decisions are made, the way participation is structured (physically and procedurally), and the manner in which information is shared, matter significantly.   A process can open or close access, equalize or differentiate participation, enhance or retard communication.

This makes sensible the idea that the “process” for civil public discourse also needs to be aligned with its purposes.  To use Public Conversations Project terms, the “conversational structure” will ideally be one that invites civil discourse and discourages its opposite.

A simple illustration of the impact of structure is a room’s seating arrangement.  Theater-style rows and standing microphones promotes limited interaction with others, a listening-only role for most people and a restricted opportunity for speaking that favors those who can speak before a crowd.  It also empowers anyone looking to deliver a diatribe.  On the other hand, a set-up with round tables staffed with facilitators promotes small group discussion in which everyone can speak, provides a greater potential for connections among people holding a variety of views, and impedes speeches to the whole room.

Many other process elements effect, in different ways, how people participate.  Discussions may have “ground rules” or other guidelines.  These may include time limits on speaking and guidance to avoid interruptions and personal attacks.  People may be instructed to submit questions in writing.  There may be recording of participant input on flipcharts, by transcript or by more sophisticated technology like keypads. 

Understanding the important relationship between process and purpose, lawyers will appreciate attention to the “how” of public discourse.

Applying Reason and Analytical Thinking

A lawyer’s stock-in-trade is the ability to organize facts logically, distinguish what is relevant from what is not, analyze opposing considerations, and compose clear, reasoned arguments and presentations.  This ability to “connect the dots” is highly valued.

These are all good skills for civil discourse, when adapted to that context.  Obviously, public discourse is not constrained by the rules of legal proceedings.   It accommodates those who use stories, not logic, to make their points, and those who appeal to “higher” laws or ethics, not laws, to determine right from wrong.  Relevance is a much more elastic concept.  Airing matters that would not be admitted in many formal legal settings may be vitally important. 

Experienced lawyers know very well that disputes often entail much more than legal issues.  At play can be history, belief systems, relationships and strong emotional and psychological currents.  These may forcefully surface in public discourse.  Acknowledgement, empathy and even apology may at times be the most powerfully constructive response. For example, I once assisted a community effort where massive development was poised to explode on a low-income neighborhood that a generation before had been nearly destroyed by “urban renewal.”  Memories of that past injustice needed to be expressed and honored in order for people to move to envisioning a future that would not repeat the past.

Yes, This We Can Do – Lawyers Can Be America’s Champions Of Civil Discourse.

On the theme of purpose – our common purpose to uphold democracy – I close with Rodney Smolla, a First Amendment scholar and former law school dean who wrote these words a year ago in the wake of the shooting of Gabrielle Giffords:

Those who participate in the democratic experiment. . . do have choices.  Those of us who genuinely form the democracy, Republican and Democratic and independent, right, left and center, have it in our power to improve the quality of our public discourse. And we should do it, for the good of the country . . . . We should do it because it will . . . make the country better, and our democracy stronger.[8] 

Mary Jacksteit is a 1975 graduate of Georgetown University Law Center who, since 1989, has been a practitioner of alternative dispute resolution (mediation and arbitration) as well as dialogue and civic engagement processes.  She now works for the Public Conversations Project of Watertown, Massachusetts, serves as Chair of the Federal Service Impasses Panel and maintains a private consulting, facilitation and mediation practice. She can be reached at mjacksteit@publicconversations.org

[1] American Bar Association Resolution 108 to Promote Civil Public Discourse was unanimously adopted in August, 2011. “See page 23”.

[2] The opening line of Resolution 108 “affirms the principle of civility as a foundation for democracy and the rule of law.” (Emphasis added.) The Section of Alternative Dispute Resolution Report accompanying the resolution says more: “[A] true and free democratic society cannot long endure” in the kind of “toxic environment” that we suffer today. (p. 2). 

[3] Paul L. Friedman, Taking the High Road: Civility, Judicial and The Rule of Law, NYU Annual Survey of American Law, Vol.58:187, 190 (2002) (Emphasis added.)

[4] For those interested in learning more about reflection, I recommend an interview with Corky Becker in Section 3 of Dialogue: A Virtual Workshop, accessible on the Resources page of the Public Conversations website, www.publicconversations.org .

[5] Andrea K. Schneider, Shattering Negotiation Myths: Empirical Evidence on the Effectiveness of Negotiation Style, 7 Harv. Negot. L. Rev. 143, 169, 173 (2002), available at http://Scholarship.law.marquette.edu/facpub/272 .

[6] Resolution 108 authorizes the and its member entities to “foster the structural advance of democratic governance by encouraging the growth of collaborative processes that are increasingly being integrated into federal, state and local government policy making.”

[7] The Enemy Within: Why We're Hardwired for Conflict, the Public Conversations Project (January 27, 2011), http://www.publicconversations.org/blog/enemy-within-hardwired-conflict .

[8] We Need to improve Civil Discourse for Our Own Sanity, Birmingham News (January 23, 2011) http://blog.al.com/birmingham-news-commentary/2011/01/viewpoints_we_need_to_improve.html.

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