Civility Reboot

• Author: Heidi K. Brown
• Pages: 22-23

Civility Reboot

Can lawyers learn to be nicer to one another?

By Heidi K. Brown

In his book The Soul of the La w, Benjamin Sells cautions

that “the soul of the law is su ering.” He points to the “dis-

turbing rise in inciv ility among lawyers” as one man ifesta-

tion of this a ict ion.

Sells notes that the t erm civility derives from Latin word s

related to “citizensh ip” and “members of a household.”

Indeed, civilit y comes from the Latin word civilis, mea ning

“relating to public life, befi tting a citiz en.”

It’s been four years since the republicat ion of Sells’ book.

(It was fi rst published in 1994 and then by the America n Bar

Association in 2014.) In our current tempe stuous political

climate, inciv ility seems to be the modus operandi for how

many citizens convers e about the rainbow of legal issues

facing our c ountry. Incivility abounds in households, o c es,

boardrooms, courtrooms and written communications.

Social media (and President Dona ld Trump’s liberal use

of it to demean and debase others) has ra ised (or lowered?)

the bar of incivil ity. It’s not enough to respectf ully disagree

with someone anymore. Now we a ssign nicknames, we heap

sarcasm, we condesc end, we bully. Citizens use the harsh-

est of language to c riticize one another, writers, politic ians,

athletes, singers , social movements and even restaurant s,

books and art—of ten using the anonymity of the inter net as

a weapon.

When did it become so cool to be so u nkind? Can our pro-

fession (and society in general) detox ify and

reboot its soul? Sells sugge sts that “inci-

vility itsel f might be pointing the way by

directing the law t o citizenship and house-

holding, both of which requir e attention,

caring and inter est more than anything

else.” Maybe we need to take a ste p back

and ask ourselves: How should citizen s or

members of healt hy and nontoxic house-

holds converse w ith one another?

VICIOUS VOLLEYS

As a young and introvert ed legal writer

in the early days of my law prac tice in the

boisterous c onstruction litiga tion arena, I

always felt more comforta ble in the shelter

of my o ce typing fu riously on my laptop than in the fray of

the courtroom. I felt newly empower ed to say things through

my legal writing t hat I never would have uttered face to face

to another member of the profession. I ad mit that, as a legal

writing novic e acclimating to an aggr essive niche of law

practice, I rea dily got caught up in mirroring the rhet oric

that peppered many of my opposing cou nsel’s demand let-

ters, mediation papers a nd motions that landed on my desk.

I confess I felt an unchar acteristic rush of power when,

scrutinizi ng my opposing counsel’s briefs, I discovered

fl awed argu ments, inaccurate citations or pivot al typograph-

ical errors that ou r trial team could critici ze in opposition

and reply briefs. It seemed to be the r ules of engagement.

Opposing counsel lobbed sna rk, sarcasm and ad hominem

attacks at us , and we volleyed back in kind. I thought that

was the way litigators wer e supposed to talk to each other.

Several of my formative mentor s and trainers spoke that

way. The message was if you weren’t superaggre ssive, you

were weak.

Growing up as the daught er of an Episcopal minister, I

was pretty sk illed at censoring myself as a kid . Swearing

(and voicing blossoming political opinions that d i ered from

others) was verboten in our household; even the phras e shut

up was outlawed. But once I beca me a member of the bar, I

learned a whole new vernac ular. Such language

felt potent at the time. I honestly did n’t realize

the toll all that ba ck-and-forth disparagement

took on one’s psyche.

When I transitioned to te aching legal writ-

ing, I pored over so-ca lled bench slaps—admo-

nitions by judges of lawyers who subm itted

shoddy briefs or fl outed proc edural rules for

court fi l ings. Having been trained to follow—

to the letter—cour ts’ substantive, procedura l

and formatting r ules governing written submis -

sions, it always ba ed me how of ten lawyers

just outright violated such r ules or submitted

written work r iddled with such fl aws, citation

errors and rampant g rammatical blunders. I

love when judges take the ti me to note these

writing tra nsgressions and explain how

22 || ABA JOURNAL OCTOBER 2018

Advocacy

EDITED BY KEVIN DAVIS,

LIANE JACKSON

Practice

PHOTO COURTESY OF ABA PUBLISHING