Vermont Bar Journal
Summer 2008 - #5.
The Demands of Civility Exploring the Requirements of Good Lawyering
The Vermont Bar Journal #174, Volume 34, No. 2 SUMMER 2008
The Demands of Civility Exploring the Requirements of Good LawyeringReviewed by Ross Feldmann, Esq.A practicing lawyer need not look far to find examples of uncivil and unethical behavior reported in the legal media. The week of writing this review I stumbled across two such examples in a single e-mail from the ABA Journal's Weekly Newsletter. In the first, a lawyer in Tennessee was suspended from federal court practice for three years essentially for not being able to shut up in court after a federal judge ordered him to be quiet.(fn1) In the second, a lawyer in Oklahoma was so rude in correspondence with opposing counsel that a federal judge sanctioned him by ordering that he write and submit a bar journal article on professional civility.(fn2)
If the rambunctious Oklahoman needs a place to start his research for the new assignment, he could not do much better than Michael Cavendish's recent book, Coeur du Feu/Fireheart. This book comprises a series of essays Cavendish has published in bar journals and other legal publications across the country. By and large, these essays address ethics and civility, topics about which Cavendish has a lot to say. One essay, though, strays slightly from the theme and delves into some weighty legal theory, with a scintillating discussion of what the purpose of law is and how it falls short of accomplishing its purpose.
From this description, one might justifiably assume that Cavendish is either retired or semi-retired, a tad bit curmudgeonly, and forlorn about the direction in which his profession has gone. Quite the contrary, what is refreshing about this collection of civility and ethics essays is that Cavendish does not meet the profile of one who typically would author such work. From his firm's web site, he appears anything but old. In fact, he is ten years out of law school and appears to maintain as busy a practice as one might expect from a 35-yearold partner at a large Florida law firm.(fn3) He writes with a voice that is far from forlorn, but optimistic and genuinely hopeful that we can and must make our profession better.
Despite his young age, Cavendish is certainly qualified to offer an informed perspective on ethics and civility. He has amassed an impressive resume of legal commentary, including more than a dozen articles and two books, with a third on the way. Hence, what this collection of essays primarily offers is an engaging discussion about civility and ethics and the temptations each and every one of us should strive to avoid. His overriding theme is that we must endeavor to treat each other better, lest we demean our profession and ultimately disserve our clients.
Although his commentary is usually engaging and interesting, Cavendish can sound slightly too flowery and pedantic in some essays. At times, one wonders whether this is a book about professionalism or a selection from the self-help section. In his second essay ("Fireheart"), for instance, Cavendish writes about the pervasiveness of anger and hatred in the legal profession.(fn4) He offers "love" as the solution. Seriously.
Anger and the hateful emotions are a wind that soils us with the sender's bad feelings. And they tend to instigate us to blow a gale of venom back. When a lawyer does that, he fails, he is knocked off task and adrift until he can right himself, he is asphyxiating in a tornado of calescent shear. His retribution, set against the original anger of the other, has created a grim whirlwind. Love is the solution. Where it may be lit, the heartfire of love burns with an intensity geometrically greater than the acidic combustions of any of the foul feelings that arc from the process of suing or being sued.(fn5)
Although this is well-written, to be sure, I cannot imagine a lawyer finding such a discussion immensely practical. And I can only wonder what would happen if, during my next discovery dispute, I end my e-mail exchange with a note expressing my love to opposing counsel. One can understand what Cavendish is getting at, though. We do need to be conscious of how the vitriol that pervades the legal profession, especially in litigation, can stand in the way of our ultimate goal, which can be generally described as orderly, fair, and efficient dispute resolution or prevention. Meeting this goal is a little more complex...