Article Advancing the Cause of Truth and Civility: the Utah Supreme Court Weighs in

JurisdictionUtah,United States
CitationVol. 34 No. 3 Pg. 38
Pages38
Publication year2021
Article Advancing the Cause of Truth and Civility: The Utah Supreme Court Weighs In
No. Vol. 34 No. 3 Pg. 38
Utah Bar Journal
June, 2021

May, 2021

Gregory N. Hoole, J.

In the Utah legal profession, the stakes are never higher than when a case comes before the Utah Supreme Court. Every decision, at a minimum, adds to the body of law that governs the people of Utah. Some of the decisions concern the most fundamental of principles undergirding our freedoms and way of life. And some of the decisions concern life itself.

The current court is composed, as Chief Justice Matthew Durrant notes, “of people with very strong and differing views,” each of whom comes at the issues before the court from a different perspective. Given the diverse views and high stakes at play, it is not surprising that vigorous debate accompanies the court’s decisions.

Disagreement among the justices has led to frequent dissents. These dissents and the public debate at oral argument that leads to them were discussed among the members of the court as a panel at the last in-person Utah State Bar Convention.

Chief Justice Durrant acknowledged in relation to this discussion that “disagreeing in public creates an inherent tension in our work.” Yet, as each member of the court recognized, for all the vigorous debate and inherent tension in the court’s work, the relationships and feelings among the five members of the court could not be more congenial, respectful, and even affectionate. Indeed, Justice Deno Himonas observed, “I think to a member we not only like each other but love each other.”

In the first part of this article, published in the last volume of the Utah Bar Journal, we discussed the critical importance that truth and civility play in our democracy and in preserving our freedoms. We discussed how attorneys, who take on the responsibility to advance the cause of truth and civility by oath, and who are trained to operate only on the basis of evidence, are uniquely positioned and uniquely obligated to lead out in this effort.

We recognized, however, that it is one thing to commit to conduct ourselves with “honesty, fidelity, professionalism, and civility,” Utah R. Pro. Conduct pmbl., and another thing entirely to put that commitment into practice, especially with respect to professionalism and civility. Drawing on the Utah Supreme Court’s panel discussion and follow-up interviews with its members, this part of the article seeks to explore the principles the court has followed in achieving an atmosphere of mutual respect and affection amidst fierce legal debate. It focuses on how we can apply these same principles not only to better our profession but also to “secure the blessings of liberty to ourselves and our posterity.” U.S. Const. pmbl.

TRUTH AND HONESTY

Given the interrelatedness of the cause of truth and civility, it should come as no surprise that an article about civility should begin with a discussion of truth. As Chief Justice Durrant observes:

Truth is at the heart of much of what it means to be civil. If you’re known as a lawyer that doesn’t cut corners or bend the truth, not only does that help you sleep at night, but it is an enormous asset in negotiations and argument. Such an asset also goes a long way in avoiding the uncivil behavior that can sometimes exist between counsel. Once you start making accusations without foundation, making assertions you can’t back up, you completely hamstring your ability to be a professional and effective advocate. You have to be able to back up what you say. The beauty of the judicial system is that you have to prove your assertions. The whole process is designed to help get us to the truth.

Reflecting Chief Justice Durrant’s observations, of the five specific suggestions to foster civility offered by Justice Thomas Lee, three of them relate to honesty. First, Justice Lee admonishes us to “begin a challenge to another’s position by conceding baseline points of agreement as a starting point.” Such candidness not only enhances our credibility in the court’s eyes, but it also helps engender feelings of trust and respect even in the eyes of those who oppose us.

Second, Justice Lee suggests “openly acknowledging, where possible, that a different perspective or set of values could lead to an opponent’s differing view.” This is not meant to be a glib concession but a mindful exercise requiring honest reflection. Working to understand another’s position not only demonstrates a sincere desire to seek truth but serves also to clarify and refine one’s own position. Such an honest effort tends to be infectious, leading one’s opponent to do likewise. The mutual understanding that results from this process quells suspicions about others’ motives and brings parties closer to accord.

Third, Justice Lee urges us to “avoid all-or-nothing or black-and-white framing of the issues in which our own position is portrayed as unambiguously virtuous and our opponent’s position as pure evil.” We might believe such a tactic reflects zealous advocacy, but the intellectual dishonesty (or lack of comprehension) betrayed by this is painfully obvious and injurious to our credibility.

Similarly, we can avoid polarization and encourage productive discussion by moderating our speech. Benjamin Franklin recorded that he found himself to be far more persuasive and far more likely to avoid error by “expressing myself in terms of modest diffidence.” Benjamin Franklin, The Autobiography of Benjamin Franklin 17 (1793). Franklin thus made a practice of couching his opinions with such moderating phrases as “It appears to me” and “If I am not mistaken.” Id. Franklin counseled:

[Using a] dogmatical manner in advancing your sentiments may provoke contradictions and prevent a candid attention. If you wish information and improvement from the knowledge of others, and yet at the same time express yourself as firmly fix’d in your present opinions, modest, sensible [people], who do not love disputations, will probably leave you undisturbed in the possession of your error...

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