Views From the Bench, 0817 UTBJ, Vol. 30, No. 4. 22

AuthorJ. Frederic Voros, Jr. Judge.

Views from the Bench

Vol. 30 No. 4 Pg. 22

Utah Bar Journal

August, 2017

July, 2017

Civility in a Time of Incivility

J. Frederic Voros, Jr. Judge.

EDITOR’S NOTE: The following remarks were given by Judge Voros at a CLE sponsored by the J. Reuben Clark Law Society in the Joseph Smith Memorial Building, Salt Lake City, on June 15, 2016. We republish them here with the author’s permission. To avoid disrupting the flow of Judge Voros’s remarks, while providing our readers with citations to the many resources on which Judge Voros draws, we suspend our usual limitation on endnotes.

I appreciate the opportunity to speak at this CLE sponsored by the J. Reuben Clark Law Society. I graduated from the J. Reuben Clark Law School and am in fact the first – but not the only one – of its graduates to serve on a Utah appellate court. I also taught at the S.J. Quinney College of Law for 10 years. So today I’m wearing my “game-day tie” – blue and red stripes – proclaiming my dual allegiance to our two great law schools.

My topic today is Civility in a Time of Incivility. I understand that you are here in large part to earn ethics CLE hours, even though earning those hours requires you to listen to a judge talk about civility. I hope to persuade you today that civility is not as dull a topic as you might think – and also that eschewing incivility is in everyone’s best interest.

The Utah Supreme Court has added compliance with the Utah Standards of Professionalism and Civility to the Attorney’s Oath. So you younger lawyers have taken an oath to act civilly. Our supreme court has also incorporated the Standards of Professionalism and Civility into the Utah Rules of Professional Conduct. So now an “egregious violation or a pattern of repeated violations of the Standards of Professionalism and Civility” may support a finding that a lawyer has committed misconduct.[1] In addition, the Judicial Council has adopted Utah Standards of Judicial Professionalism and Civility.[2] We judges should be setting a good example. More on that in a moment.

Today I would like to focus on one rule of attorney civility in particular, Rule 3: Lawyers shall not, without an adequate factual basis, attribute to other counsel or the court improper motives, purpose, or conduct. Lawyers should avoid hostile, demeaning, or humiliating words in written and oral communications with adversaries. Neither written submissions nor oral presentations should disparage the integrity, intelligence, morals, ethics, or personal behavior of an adversary unless such matters are directly relevant under controlling substantive law.

The rule is not difficult to understand: give others the benefit of the doubt; no name-calling; don’t make it personal. Treat others as you want to be treated.

But you would be wrong to think these simple rules of good conduct command universal support in America today. When I googled “Is civility,” Google suggested the following searches: “Is civility dead,” “Is civility dead today show,” and “Is civility dead in America.” Apparently Google users are wondering if civility is dead in America. And who would blame them?

What a presidential season it has been! Mocking an opponent’s physical characteristics; accusations of pants-wetting; name-calling such as “little baby,” “spoiled brat without a properly functioning brain,” “a person with no natural talent,” and “delusional narcissist.” As you know, I’m not making this stuff up.

To be fair, though, politics in America has long been a contact sport. President Lincoln was castigated by the press and his political opponents as a “monster,” a “perjurer,” an “ignoramus,” a “buffoon,” a “butcher,” and a “devil.” He was accused of behaving “like a thief in the night,” of being a “miserable tool of traitors and rebels,” and of being “adrift on a current of racial fanaticism.”[3] Lin-Manual Miranda, creator of the Broadway hit Hamilton, reminds us that in the election of 1800, Jefferson called Adams “a blind, bald, crippled, toothless man who is a hideous hermaphroditic character with neither the force and fitness of a man, nor the gentleness and sensibility of a woman.”[4] Adams responded that Jefferson was “a mean-spirited, low-lived fellow, the son of a half-breed Indian squaw, sired by a Virginia mulatto father.”[5] And an atheist.[6] And dead, so don’t waste your vote on him.[7]

I wish this phenomenon were limited to politicians, and usually it is, but some judges have also acted in a way we would have to call uncivil. To be honest, I think it started at the top. Consider these gems from the late Justice Antonin Scalia, a brilliant jurist, but one often criticized as an example of incivility: The [majority] opinion is couched in a style that is as pretentious as its content is egotistic .…

If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag.[8]

In another opinion he wrote, “Even accepting Justice Breyer’s rewriting of the Eighth Amendment, his argument is full of internal contradictions and (it must be said) gobbledy-gook.”[9] He concluded by stating, “Justice Breyer does not just reject the death penalty, he rejects the Enlightenment.”[10]

How did Justice Scalia do under Rule 3? “Hostile, demeaning, humiliating”? I think so. Disparaging the intelligence of another? Again, I think so. I leave you to decide whether the pejorative “gobbledy-gook” in fact “must be said” in a judicial opinion. So even if you look to Justice Scalia as a model in other ways, please do not imitate his tone of incivility.

But others have. Consider this in-court exchange between Chief Judge Edith Jones and Judge James L. Dennis of the United States Court of Appeals for the Fifth Circuit: JUDGE JONES: [slams her hand down on the table] Would you like to leave?

JUDGE DENNIS: Pardon? What did you say?

JUDGE JONES: I want you to shut up long enough for me to suggest that perhaps…you should give some other judge a chance to ask a question.[11]

Hostile? Yes. Demeaning? Yes. Attributing improper conduct? Yes. Where do you suppose Judge Jones got the idea that she could talk to a colleague, a fellow judge, that way right there in...

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