December 22, 2020 Articles

Rules of Civility

Professionalism is effective advocacy.

By Edward A. Marshall

Politics aside, the first presidential debate of 2020 was widely hailed as a disaster. Interruptions, jabs, and inflammatory rhetoric made it nearly unwatchable. Pundits from both sides of the aisle were dismayed at the candidates’ performances, and virtually no one watching was more enthusiastic about their party’s nominee after the debates than before.

Watching the spectacle unfold, however, reminded me of a lesson I learned early in my career when I left private practice to serve as a law clerk: Of all the tools in the litigator’s arsenal, civility may be among the most potent. From the political stage to the big screen, audiences rarely cheer for bullies and few want to see them come out on top. The courtroom is little different.

I recall vividly the first time I became incensed by the incendiary jab of opposing counsel. It was a contentious civil dispute, and correspondence between the attorneys had frequently employed nasty rhetoric. In response to one of our motions, which I had drafted as a first year associate, our opponent concluded their recitation of legal authorities—case law they asserted contradicted our position—by positing that the principles these authorities embodied reflected something “opposing counsel should have learned in law school.” That patronizing flourish left me livid. With quiet rage, I sat down at my computer and wrote a reply brief that singed the toner in the printer as it came off the press. It was delightfully cathartic. But then, to my dismay, the supervising attorney removed the stinging vitriol from my papers and submitted a far more subdued brief to the court. I was convinced that he had lost his mind. Surely, this calm, measured retort was not how real litigators responded when their core legal competence had been impugned!

Later, when I became a law clerk, it did not take me long to realize that the cathartic response and the effective one are rarely the same. My experience working for the Court persuaded me that incivility is not only unnecessary and unprofessional, it significantly detracts from effective advocacy.

From my time in practice, I appreciated the inclination to ascribe nefariousness to an opponent over every mistake made in litigation. An opponent’s error will almost always be deemed purposeful, deceitful, and\or a “misrepresentation” of the law or the facts. Sometimes that will be true. Often times, it will not. But, in either event, railing against such mistakes does not make the Court more likely to see things from your enraged point of view.

To borrow from an esteemed Judge, “[a] judge who has normal sensibilities and loves the law will react on his own to events that call for outrage. He may not respond favorably to urging that he should be disturbed or outraged.”  See Hon. John C. Godbold, Twenty Pages and Twenty Minutes – Effective Advocacy on Appeal, 30 Sw. L. J. 801, 817 (1976). Excoriating accusations, even about your opponent’s lack of professionalism, alienate your audience. They cause the Court to look even more critically at the alleged bases for your accusations. Ultimately, both sides’ credibility and professionalism are called into question by impassioned mud-slinging.

Likewise, abusing an adversary for his or her lack of legal acumen can have an unintended and disadvantageous side effect. Contrary to the unstated expectation I had upon leaving law school, cases are not decided solely, or even principally, based on who has the smarter lawyer. The judge will not hand back your brief at the conclusion of oral argument and give you a letter grade, assigning victory to those having A’s and denying C-students relief. While a certain level of incompetence can doom a client’s otherwise meritorious position, there is a commendable judicial resolve to look past bad lawyering and render the correct result based on the record and the merits of a case. If you succeed in convincing the Court that your adversary lacks an understanding of the law or facts, then it may prompt the Court to dig even deeper into pertinent authorities or the record, doing the research that, by your own argument, your opponent clearly neglected to do. At the end of that research, the Court is often as likely to discover fault in your position as in that of your allegedly inept adversary.     

Finally, a lack of civility inadvertently betrays a masked desperation about the merits of your case. Nearly all of us have encountered the tongue-in-cheek advice, “If the facts are on your side, bang on the facts. If the law is on your side, bang on the law. If neither the facts nor the law is on your side, bang on the table.” By “banging on the table”—trying the professionalism, competence, or veracity of your opponent, rather than the underlying merits of the case—an adverse inference is warranted, and may well be drawn: There would be no need to bang the table if either the facts or the law could sustain your position.

So, as you embark on your legal career, try to maintain your decency and civility. It will serve your clients well, and it will lead to a much more enjoyable and fulfilling career in the process.

Edward A. Marshall is a partner with Arnall Golden Gregory LLP in Atlanta and a cochair of the ABA Commercial & Business Litigation Committee’s subcommittee on Payment Systems Litigation.

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