On his way out the door on August 6, 2011, outgoing ABA President Stephen Zack, gave his valedictory, repeating today’s discontent du jour about the lack of civility in our public discourse. See “ABA President Calls for Return to Civility.”
However, it’s too bad he undercut his call to action by asking that, of all people, lawyers be the ones to lead the restoration of civility in the public arena. Huh? Isn’t that a bit like inviting arsonists to put out a fire?
Too harsh? O.K., maybe it’s more like putting lipstick on a pig. After all, for some lawyers, no circumstances ever justify altering an insufferably overbearing and irascibly vexatious nature.
A long history.
And contrary to a penchant for aspirational self-congratulation and lamentations over the passing of a supposed halcyon civility, the annals of the profession belie such self-serving shibboleths. Think back, for example, almost to our nation’s founding and 1804 and the Burr-Hamilton duel where two vitriolic lawyers dueled to the death over longstanding acrimonious invective.
Or how about 1856 and the floor of the U.S. Senate, where lawyer and South Carolina Congressman Preston Brooks took a heavy steel-tipped walking cane to another lawyer and Senator from Massachusetts, Charles Sumner, and beat him so severely Brooks broke his cane, almost killing Sumner. And in a testament to perverse collegiality, the beating was presided and protected by yet another lawyer and South Carolinian Congressman, Laurence M. Keitt , who warned off aghast witnesses from intervening by pulling a pistol and saying, “Let them be.”
And what of the especially abusive discourse a.k.a. “vituperation,” which has been decried for generations, including 1906 when the Court in Pittsburgh C., C. and St. L. Ry. Co. v. Muncie and P. Traction Co. 77 N.E. 941 (Ind. 1906), admonished, “Counsel has need of learning the ethics of his profession anew if he believes that vituperation and scurrilous insinuation are useful to him or his client in presenting his case.”
Or a generation later in 1927, when Judge Prentis wrote in Eagle, Star and British Dominions Ins. Co. v. Heller, 149 Va. 82, 112; 140 S.E. 315, 323 (1927).
“We have frequently had occasion to allude to this bad habit of too many attorneys, who in the excitement of the contest ignore or forget that in a tribunal engaged in the investigation and determination of facts upon which the rights of the litigants depend, passion, prejudice and vituperation have no proper place; that the privilege and highest duty of counsel should be to aid the court and the jury by accuracy, learning, reason and persuasion to interpret the evidence so as to ascertain the truth; and that violent denunciations are a hindrance and not an aid thereto, which should not be permitted in a court of justice. The trial courts should firmly and unflinchingly restrain such indulgences.”
Over 20 years ago, another outgoing bar leader, Foster Arnett, departing Dean of the International Academy of Trial Lawyers, speechified on the legal profession’s “marked erosion in the civility and collegiality and courtesy,” at “The Trial Lawyer and Lawyering: Personal Values and Perceptions,” and declared that “It is inconsistent with the noble character of our profession to suffer rascals gladly. With respect to their reptilian spoilation of good professional manners, I think that we ought to drain the swamp of those overly aggressive people.”
More lately, of course, yet another South Carolinian politician and of course, a lawyer, Joe “You Lie!” Wilson, took a verbal cane to still another lawyer who also happens to be the President in “One More Take on Lawyer Incivility” when he publicly calling Barack Obama a liar.
And as always, there are the reliably predictable antics of lawyers during depositions, including the “Lawyer Suspended for Deposition Tirade” and the Santa Monica, California “Suit Claims Lawyer Broke His Wrist in Deposition.” Also see “Suspended for Incivility: Lawyer’s Indignant Letter Questioned.”
Meantime, hands are wrung with scarcely a solution in the offing. See, for instance, circa 2003, two lawyers risibly calling for lawyers to be “educated or reeducated in the significance of civil conduct” as though that belated childhood lesson now proffers a way out, “Under Attack: Professionalism in the Practice of Law.”
And then, of course, there are my own railings on the subject, including my July 2009, “Lawyer Civility: Of Pork Chops in the Piranha River” and “Lawyer incivility, redux.” But the blogger at “BIG LAW INCIVILITY « The Belly of the Beast” may be on to something when he blames it mainly on the denizens of Big Law. I still consider “Small Town Collegiality” and my esteemed solo colleagues in the smaller burgs to be cut from a better, more harmonious cloth.
First heal thyself.
So while the topic unfortunately remains largely anecdotal, there’s acrid smoke enough to identify the stinging fires. Besides, that I know of, no statisticians are keeping track of lawyer incivility or manning a civility deficit clock like the U.S. National Debt Clock.
But it’s hardly something secret from the public. Unlike Mrs Patrick Campbell’s admonishment about affectionate people, combative lawyers are indeed ‘doing it in the streets and frightening the horses.’
So before aspiring to the mantle of powdered, painted porcine paragons of public civility, I say ‘first, heal thyself,’ lest such declarations conjure up the public’s justifiable derision over the absurdity of lawyers chasing after leadership of what is for them, an already-past parade.