Closing Argument: Civility is still relevant

By Judge Marvin E. Aspen
U.S. District Court
Northern District of Illinois

I was privileged to chair the 1992 7th Circuit Committee, which drafted model Standards for Professional Conduct (commonly referred to as “civility standards”). The courts, the American Bar Association and local bar associations, and government bodies throughout the nation have adopted these standards.

They set forth expectations of everyday professional behavior and are divided into four parts: (1) “Lawyers’ Duty to Other Counsel”; (2) “Lawyers’ Duties to the Court”; (3) “Court’s Duties to Lawyers”; and (4) “Judges’ Duties to Each Other.” The standards are aspirational, that is, a reaffirmation by judges and lawyers as to what constitutes professional conduct in our courtrooms.

The law firm landscape in many respects is unrecognizable from what it was in 1992. That being the case, it is fair to ask, what relevance do the standards have to litigation in 2008?

Technology has changed drastically since 1992. Voice mail, cell phones and fax machines were in their infancy. E-mail and BlackBerry usage had yet to become tools of the practice. Electronic filing, scanning, online legal research, and electronic discovery were all in the future.

In part due to increased accessibility, clients today are more demanding. Bottom-line mentality aimed at “winning at all costs” often exacerbates tensions in lawyer relationships.

The practice of law in recent years has become more a business than a calling or a profession. Firms now merge, implode, and shed non-productive partners in unprecedented numbers. Average law firm profitability has quadrupled, but average firm size has increased only 150 percent.

Lawyers talk more about pro bono, but do less of it. The average pro bono hours per lawyer decreased from 52 per year in 1993 to 39 per year in 2002. The percentage of lawyers who worked 20 or more pro bono hours per year decreased from 35 percent to 30 percent in that time.

On the positive side, the opening of the profession to greater numbers of women and minorities has been a positive force in breaking down some of the old-boy, macho approaches to hardball litigation.

Young law school graduates are drafted by law firms as foot soldiers in the litigation wars. Law school tuitions and debt in 1992 were a fraction of what they are today.

Perhaps relatedly, starting salaries at law firms have increased more than 100 percent, and young associates work staggering hours to justify those salaries. One-on-one law firm mentoring for these new lawyers, however, has been replaced by in-house and state-mandated continuing legal education.

Some of these eager lawyers emerge from law school properly idealistic about the litigation process, then suffer culture shock when they enter the courtroom. Other young lawyers may begin practicing law under the influence of television and motion pictures.

Practice almost always follows fiction. Young lawyers and students exposed to the machinations of TV programs and Hollywood films inaccurately sensationalizing trial practice may very well expect that they should act in some of the dramatic, abrasive ways portrayed. Certainly, some of today’s new clients, educated about our court systems by the media, expect them to do so.

The courts have undergone change as well. Only 1.2 percent of civil cases filed in the federal courts now go to trial. Trial lawyers are being replaced by faceless litigators in bigger and more impersonal court systems designed to process litigation, as opposed to trying cases.

ADR, including private mediation, is a booming business. Commercial contracts more often than not contain a private arbitration clause.

So what have these changes in the practice of law, our law firms, and our courts done to the relevance of the civility standards?

In my view, they have made it even more important for lawyers to maintain good professional relationships. Let me tell you why.

Some basics remain the same. We all start out with a good reputation. That reputation can be easily ruined by unprofessional conduct, such as a poorly worded or carelessly sent e-mail or an abrasive in-court performance.

A damaged reputation is extraordinarily difficult to rehabilitate. The way you will be treated by fellow attorneys and judges, and your effectiveness as a litigator, is directly impacted by your reputation in the legal community.

The decision a new lawyer makes early in a career as to how to act professionally will have as much of a long-term effect on success and happiness as any other professional decision.

Ultimately, there are no short cuts and no rationales for short-term gain that won’t prove costly in the long run for today’s lawyer who seeks to balance properly obligations to both the client and our justice system.

Shakespeare, a great admirer of the legal profession, notwithstanding the popular distortion of the context of his “let’s kill all the lawyers” line from “Henry VI,” writes in “The Taming of the Shrew”: “… and do as adversaries do in the law, strive mightily, but eat and drink as friends.”

Our continuing professional obligation is to pass down from one generation of lawyers to another this time-honored tradition of lawyers doing battle as adversaries but breaking bread as friends afterward.