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!