Incivility in the legal system has been an ongoing challenge, but as society has become more discourteous, the problem in the courts has grown, too.
At a program at the American Bar Association Annual Meeting in San Francisco titled “Avoiding a Game of Thrones in the Courtroom: Fostering Civility and Best Practices,” a distinguished panel of judges and experts discussed the practical tools available to jurists to encourage civil behavior from the lawyers that appear before them
Civility can be one of the most important tools available to a lawyer or judge and when practiced consistently, can go far to enhance dispute resolution, improve the image and reputation of our profession and improve the quality of life of practitioners and judges.
The program was inspired by Maryland Judge William D. Missouri, who passed away in November 2017. Missouri worked throughout his career to promote civility and professionalism in the bar, the bench and the community.
In honor of Missouri, the ABA Judicial Division presented the first Honorable William D. Missouri Civility Award at the meeting to the judge’s widow, Delores Missouri. In subsequent years, the award will be presented annually to a lawyer or judge who exhibits exceptional qualities of civility, courtesy and professionalism toward colleagues, litigants and the public. It may also be presented to a person or organization that promotes civility in the legal profession.
Judge David Thomson of the New Mexico Supreme Court moderated the panel and stressed that a judge has the obligation to “set the tone” in the courtroom. But he kicked off the discussion talking about incivility in practices that occur outside of the courtroom: depositions and discovery.
All the judges agreed that severe remedies for bad behavior such as contempt citations should be a last resort. “A judge has to manage the situation and control the court,” Judge Sophia H. Hall of the Circuit Court of Cook County in Chicago said. A contempt charge “means the judge has lost control.”
Judge Elizabeth Stong, U.S. Bankruptcy Court Eastern District of New York in Brooklyn, noted that what goes on in court is just the “tip of the iceberg” when it comes to the legal process and interactions between lawyers. She warned that judges need to care about what occurs outside of court because it all affects the fairness of the system.
Depositions can become overly contentious and poison the process. Some lawyers believe that bullying and disrespectful behavior toward opposing counsel gives them an edge. That’s why Merril Hirsh of the Law Office of Merril Hirsh PLLC in Washington, D.C., said that judges and the courts need to create incentives for civility. He said we need to make it clear that “incivility will be ineffective. Acting this way won’t help me and will actually hurt me.”
Judge Timothy L. Brooks of the U.S. District Court, Western District of Arkansas in Fayetteville, observed that one of the reasons for the uptick in incivility is that we live in a digital world. Electronic communication has replaced phone conversations and people are far more willing to be rude in an email than over the telephone. He stressed that there was absolutely no contradiction between being a zealous advocate for your client and being civil. “You can express disagreement with respect,” he noted.
The panel engaged in a spirited discussion about how to address the instances of incivility and bullying both in court, in depositions and even in brief writing. Brooks believed that engaging attorneys early in the process could help set the tone.
Brooks also explained that a judge being available throughout the process could serve as a deterrent to bullying behavior. Hirsh agreed that just knowing the judge will pick up the phone and listen to a complaint, serves to control bad behavior.
Much of the discussion centered on demeanor and remaining in control of your emotions when the arguments get heated. Heidi K. Brown, a professor at the Brooklyn Law School, said it was important to be assertive, but also key “to not mirror bad behavior.” Hirsh suggested “taking a breath” and staying calm which, he admitted, can be difficult when you are being attacked.
Stong said she has used this technique and found it very effective. When a lawyer is acting out or attacking her or her rulings, even when it becomes personal, she allows them to speak, then asks, “Are you finished?” She finds this approach often defuses the anger.
Choi Portis of the ABA Young Lawyers Division said she has done a lot of depositions and finds letting someone vent while you stay calm helps make them look weak and unstable. Choi said she learned this technique on the playground in kindergarten and it still works. “You need to remain cool and be strategic,” she said. “You need to remain at 70 degrees – not too hot and not too cold.”
The problems with bad courtroom behavior can be exacerbated when there is a pro se litigant. Stong emphasized the need to let them be heard and not cut them off to soon. She said letting them have their say is the best way to go. “If you have to make a mistake, that’s a better mistake,” she said.
Changing the culture in the legal profession and toning down the adversarial rancor can be a slow process, but the judges all saw hope. “Rambo litigators are not going to be admired or hired or prevail,” Stong said.
To paraphrase Game of Thrones author George R.R. Martin, “What do we say to the Lord of Incivility? -- Not today.”