ASK THE BARRISTER: Is Civility Incompatible with Advocacy?

Dear Barrister:

I had a dream last night; actually it was more of a nightmare. I observed a heated courtroom exchange between an attorney and a judge.

The attorney objected to statements made by opposing counsel during opening arguments. During the course of his objection, he suggested as fact that which the court knew was tenuous at best. The judge chided the lawyer rather sternly, reminding the attorney that he was not new to the bench, had reached adulthood many decades earlier, and was nobody’s fool. He suggested that the attorney not waste the court’s time or taxpayer dollars with time-wasting shenanigans. The attorney nodded, as if he understood, and then repeated that for which the Court had just rebuked him.

The judge looked incredulous. “Maybe that went over your head,” he said. The judge reminded the attorney that he “did not just fall off the turnip truck.” The attorney stared blankly at the judge, and then in a voice laced with disdain, regurgitated the same ridiculous argument.

The Judge leaned forward across the bench, crinkled his forehead, and with a tenor and pitch drowning in unchecked distaste, asked the attorney, “Are you intentionally trying to upset this court?” The attorney sneered as he replied, “Not at all, Your Honor. But I will not sit by while this court allows its biases and ineptitude to affect its rulings at my client’s expense.” The judge called for his deputy, nodded in the direction of the attorney, and shouted, “Take him into custody.”

Every one of the jurors sat in utter amazement, along with the courtroom spectators. Their aggregate discomfort was palpable. You could feel their distress for the system and its players. I know it was just a dream, but I think my subconscious is fighting my rational self about what is required to succeed in court versus the notable lack of decorum in the courtroom. Is this just my experience, or is our legal community seeing a decline in the kind of civility that once afforded attorneys credibility, as well as a certain position in our society?

Sincerely,
Troubled in Tybee

Dear Troubled:

The courtroom, it seems, is a microcosm of the greater community. According to an article in USA Today1, “Incivility is storming the gates.” It thundered onto the floor of the U.S. House of Representatives, when, during President Obama’s recent Congressional address, now famous (or infamous, depending on your viewpoint) South Carolina Rep. Joe Wilson interrupted the President, shouting, “You lie!” Incivility exploded on the tennis courts at the 2009 U.S. Open, when Serena Williams, after losing a match to Kim Clijsters, lost her cool, harangued the line judge and threatened her opponent with physical harm, as a result of which she was fined $10,500. And incivility stomped across the Radio City Music Hall, when Kanye West, during the 2009 MTV Video Music Awards, interrupted Taylor Swift’s acceptance speech in defiance of her win and insisted that Beyoncé, not Ms. Swift, should have been the recipient of the Best Female Video award.

All three acts of incivility were followed by words of contrition and regret by those involved. Although public opinion appears to object to such behavior, society still seems to want more of the same, as celebrities continue to seek the spotlight. One of the bright lights to these uncouth and discourteous acts was when Beyoncé forfeited some of her time in the lime light when she did receive an MTV award in a different category, so that Taylor Swift might have an opportunity to complete her acceptance remarks of which Kayne West had sought to deprive her.

In recent years, we have seen a disconcerting resurgence of similar acts of incivility in the courtroom. In the 1992 case of Evanoff v. Evanoff (262 Ga. 303), a wife failed to file a timely answer to her husband’s petition for divorce. Both parties were represented by counsel. They had engaged in numerous conversations in an effort to negotiate a settlement of the underlying issues. The husband’s attorney, nonetheless, appeared to take a final divorce, sans notice to the wife’s attorney. He presented evidence and obtained a final judgment. The wife sought – unsuccessfully – to vacate the judgment. An appeal was taken to the Georgia Supreme Court, which affirmed the trial court’s decision.

In his concurring opinion, Justice Benham noted that by failing to file a timely answer, the wife was not entitled to rely on the husband providing her notice of the final trial. However, Justice Benham added that “while the husband may not have committed the kind of fraud contemplated by OCGA § 9-11-60 (d), which would have allowed the judgment to be set aside, the behavior of the husband’s attorney “may have exceeded the bounds of professional and ethical conduct….” Justice Benham alluded to the national push in recent years to encourage professionalism among lawyers, which resulted in the Chief Justice’s Commission on Professionalism….” According to Justice Benham, “If the bar is to maintain the respect of the community, lawyers must be willing to act out of a spirit of cooperation and civility and not wholly out of a sense of blind and unbridled advocacy….”

In his concurring opinion in Butts v the State (273 Ga. 760), then Chief Justice Benham commented that the defendant’s argument that his counsel was ineffective because he showed respect for – and was friendly to – opposing counsel raised an important question… “is civility incompatible with advocacy?” Justice Benham opined that “The practice of law… is a high calling where competence, civility, community service, and public service are integral parts of the professional standards.” The legal profession, he said, “is not one where disrespectful, discourteous, and impolite conduct should be nurtured and encouraged.” Lawyers, he said, “should realize that they help shape and mold public opinion” of their profession and the role of its practitioners.

According to Justice Benham, “While serving as advocates for their clients, lawyers are not required to abandon notions of civility. Quite the contrary,” he said, “civility, which incorporates respect, courtesy, politeness, graciousness, and basic good manners, is an essential part of effective advocacy. Professionalism’s main building block is civility and it sets the truly accomplished lawyer apart from the ordinary lawyer.”

Justice Benham urged that in civility’s absence, our system of justice “would be out of control and impossible to manage: normal disputes would be unnecessarily laced with anger and discord; citizens would become disrespectful of the rights of others; corporations would become irresponsible in conducting their business; governments would become unresponsive to the needs of those they serve; and alternative dispute resolution would be virtually impossible.” He asked lawyers to “embrace the positive aspects of civility,” a vehicle through which he believes advocates can empathize with each other’s viewpoints, refrain from erupting emotionally, appreciate the cost of discourteous conduct, and seek amicable means of resolving their clients’ disputes. “These positive consequences of civility will help us usher in an era where problems are solved fairly, inexpensively, swiftly, and harmoniously. The public expects no less and we must rise to the occasion in meeting those expectations.”

The push for professionalism in the legal system is ongoing. There will always be those who put advocacy, ego, and the desire to “win” above civility. Your experience is, regrettably, neither new nor atypical, but it is lawyers like you who will keep credibility in the profession by reminding us that we can be zealous advocates while retaining the qualities that once attracted so many of us to the practice of law – our compassion, philanthropy, humanity, fortitude, and moral fiber.

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1. What Happened to Civility,” By Marco R. della Cava, USA Today.