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Sybil Procedure: Civility is a way to win on the merits

I participated in a CLE on civility recently. I signed up long before the election. But now, in light of our country’s clear divide (as well as a scheduled trip to spend Thanksgiving with my politically diverse family) the topic feels particularly relevant. What does civility today demand? And how can I best practice it as a lawyer and citizen?

Our profession, of course, requires civility. The preamble to the Minnesota Rules of Professional Conduct provides that lawyers must maintain a “professional, courteous, and civil attitude toward all persons involved in the legal system.” Comments to the rules explain further that civility is not at odds with zealous advocacy: “The lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.” But while the rules require civility, these are pretty milquetoast requirements. Demanding “professionalism, courtesy, and civility,” sounds more like rules for recess behavior than substantive guidelines for attorney interaction.

In an effort to provide additional guidance, several states have defined civility with more specificity. In 2012, one law professor examined the core concepts of civility articulated in different bar associations’ requirements and identified ten common concepts of civility, including:

(1) recognize the importance of keeping commitments and of seeking agreement and accommodation with regard to scheduling and extensions; (2) be respectful and act in a courteous, cordial, and civil manner; (3) be prompt, punctual, and prepared; (4) maintain honesty and personal integrity; (5) communicate with opposing counsel; (6) avoid actions taken merely to delay or harass; (7) ensure proper conduct before the court; (8) act with dignity and cooperation in pre-trial proceedings; (9) act as a role model to the client and public and as a mentor to young lawyers; and (10) utilize the court system in an efficient and fair manner.

Donald E. Campbell, Raise Your Right Hand and Swear to Be Civil: Defining Civility as an Obligation of Professional Responsibility, 47 Gonz. L. Rev. 99 (2012).

Even with more detail, however, this list just feels like a longer list of recess rules — not a more complete definition of civility.

The ancient Greeks believed that civility was both a private virtue and public necessity — it held the state together. And the French and Latin roots of the word suggest, roughly, “relating to citizens.” In other words, it speaks to the manner in which we interact with one another.

More recent conversations of civility have focused on what it is not: it is not an absence of disagreement; it is not the absence of criticism; and it is not simply following our ethical obligations as lawyers. Professor Stephen Carter of Yale Law School has stated, about civility, “[a] nation where everybody agrees is not a nation of civility but a nation without diversity, waiting to die.” Lawyers are particularly suited to serve this view of civility.

Our profession is premised on the existence of an underlying disagreement. There would be no legal profession in the absence of disagreement. Our profession takes place in the space in which we negotiate and resolve these disagreements.

I learned to practice civility with an opponent through my participation in a college debate league. I spent my weekdays at my women’s college, learning and thinking in an encouraging and supportive environment. I spent each weekend, however, competing in debate tournaments up and down the east coast. I wanted to win, but I also became friends with my fellow competitors. These friendships ensured that I wanted to win in a way that would earn and maintain my peers’ respect. The debate community valued (and rewarded) those who aimed to win on the merits of their arguments, not cheap tricks or insults. And the best debaters never became angry with their opponents — they addressed and combated opposing arguments with reason, logic, and humor.

These are the principles that I aim to apply in legal practice. I want to win on the merits — I don’t want to win because I declined to grant an opposing counsel a reasonable extension. I don’t want to win because I filed a brief minutes before midnight, ensuring my opponent had a few less hours to respond. I don’t want to win by intimidating a new lawyer opposing me in court.

I also don’t want to practice law angry with opposing counsel. It should come as no surprise that lawyers who behave with civility report higher personal and professional rewards. In the words of Justice Sandra Day O’Connor, “more civility and greater professionalism can only enhance the pleasure lawyers find in practice, increase the effectiveness of our system of justice, and improve the public’s perception of lawyers.” These words ring true — I am most unhappy in practice when I am engaged in an email or letter exchange that has turned into a war of words. My stomach will churn waiting for a response after I’ve fired off such a missive. When I find myself in this place, I try to force myself to just pick up the phone and call opposing counsel.

Finally, I don’t want to use civility as an admonishment or tool to shame anyone. Civility works when you practice it, not when you weaponized it to reprimand others.

These principles are not at odds with zealous advocacy. In fact, research confirms this point. In The Evolution of Cooperation, political scientist Robert Axelrod demonstrates that the most efficient strategy to win any competitive game is to lead with cooperation until the other side defects, then to retaliate in kind. Game theory has labeled this approach “tit-for-tat.”

But I’m not simply advocating civility because it will reduce stress and help achieve better outcomes. Instead, I’ll fall back on a legal citation to express my underlying sentiment: “The dignity, decorum, and courtesy that have traditionally characterized the courts and legal profession of civilized nations are not empty formalities. They are essential to an atmosphere that promotes justice and to an attorney’s responsibility for the fair and impartial administration of justice.” Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1263 (9th Cir. 2010). In other words, civility isn’t a tool that we use in practice — it is a necessary element of our professions’ aim to achieve justice.

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