Fostering Civility in the Service of Justice

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Paula Lustbader, Fostering Civility in the Service of Justice, Civility Center for Law (October 2017)

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Excerpt

Civility is the cornerstone of justice and is necessary to best serve the interests of justice. Legal professionals profoundly influence society, even outside their formal work; their behavior often sets the tenor of corporate, political, and social interactions. Therefore, members of the profession serve as exemplars of appropriate behavior in our society. When they behave uncivility, they undermine our justice system in a variety of ways, most notably in increasing costs and diminishing the public confidence. However, when they behave civility, they demonstrably improve outcomes for legal professionals and the people that they serve.

Practicing Family Law with Civility: Education Is a Key Component of Civility

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Elise F. Buie, Practicing Family Law with Civility: Education Is a Key Component of Civility, American Bar Association GPSolo eReport Vol. 7, No. 9 (April 2018). 
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Excerpt

Civility—polite, courteous, professional, respectful behavior—saves money and, more importantly, promotes the psychological health and well-being of the professionals, the parents, and, most importantly of all, the children involved in the family law system. Being civil has nothing to do with being a pushover, either as a lawyer or a parent embroiled in a high-conflict divorce. Being civil means using emotional intelligence and logic to make sound strategic decisions rather than asserting emotionally charged positions and extreme statements. Being civil means disagreeing professionally while never resorting to personal attacks and name-calling. Knowing this, why would any client hire an attorney with a “bulldog” reputation for aggression and incivility? It is often said that a judge can tell a lot about litigants by the attorney they hire. The following tips will help you represent your clients civilly, thereby allowing you to provide quality, effective representation with civility, class, and grace.

Cultivating a Campus Culture of Civility

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Paula Lustbader, Cultivating a Campus Culture of Civility, Robert's Fund (2016)

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Summary

Incivility permeates our culture including in colleges and universities. Higher education influences each generation, engenders critical thinking, and establishes cultural norms for professionals. When we teach and model ways to facilitate robust, yet civil, discourse about controversial topics, we empower students to be constructive, civil, and engaged citizens in an increasingly polarized world. After offering a definition and framework for thinking about civility, the paper summarizes the pervasiveness and cost of incivility in our society generally and the presence and impact of incivility on schools specifically. The paper then provides suggestions on ways that higher education can cultivate a campus culture of civility.

The WSBA Civility Survey: Promoting the Civil Practice of Law

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Lisa E. Brodoff and Timothy M. Jaasko-Fisher, The WSBA Civility Survey: Promoting the Civil Practice of Law, NWLawyer (December 2016).
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Excerpt

How might we promote a practice of law that is both exceptionally effective and highly civil?  As members of the WSBA, we should all care about this question.  The effective practice of law is a cornerstone of our democracy and key to a thriving market economy.  Civility promotes justice and reduces transaction costs.  Incivility is expensive.  Nationally, it is well documented that incivility costs us in terms of our business, our health, and our ability to deliver on our legal system’s promise of “justice for all”.  But is it really a problem in our state?  And even if it is a problem, what can we do about it?  These were some of the fundamental questions we set out to answer when Robert’s Fund’s Civility Center for the Law, Seattle University School of Law, and the WSBA joined together in May of 2016 to survey WSBA member’s about civility in the profession.  

Abstracts of Relevant Washington Rules of Professional Conduct

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Abstracts of Relevant Washington Rules of Professional Conduct

Preamble and Scope
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Summary

[1] [Washington revision] A lawyer, as a member of the legal profession, is a representative of clients, an officer of the court and a public citizen having special responsibility for the quality of justice.

Rule 1.1 Competence
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Summary

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Rule 1.2 Scope of Representation & Allocation of Authority Between Client & Lawyer
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Be Nice: More States Are Treating Incivility as a Possible Ethics Violation

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G. M. Filisko, Be Nice: More States Are Treating Incivility as a Possible Ethics Violation, A.B.A J. (April 2012)
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Summary

Issues of incivility in the legal profession are becoming a greater concern given the heated general tone of public discourse.  Incivility may be on the rise because of the increase in pleadings and discovery, the pressure lawyers are under to bill their hours, and the media portrayal of lawyers that give clients an idea of how their lawyer ought to behave and give the lawyer an idea of how he/she ought to behave.

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Raise Your Right Hand And Swear To Be Civil: Defining Civility As An Obligation Of Professional Responsibility

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Donald E. Campbell, Raise Your Right Hand And Swear To Be Civil: Defining Civility As An Obligation Of Professional Responsibility, 47 Gonz. L. Rev. 99 (Dec. 2011)
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Summary

Professor Campbell distinguishes ethics, professionalism, and civility as follows: “Ethics addresses minimal obligations placed on lawyers under rules of professional conduct. Professionalism is identified as a lawyer’s obligations to society as a whole, apart from a lawyer’s obligations to her client. Civility is identified as those obligations that lawyers owe to other lawyers, their clients, and the court generally.” Ethical standards impose duties on lawyers that if not followed can lead to sanctions or disbarment, and professional standards provide guidelines to assist lawyers in serving the public good and the profession itself. Civility standards, on the other hand, are meant to provide guidelines on how lawyers ought to conduct themselves in relation to the parties involved, to “ensure that the image of the legal process is preserved and respected by the public, and to ensure that disputes are resolved in a timely, efficient, and cooperative manner.”

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5 Ways to Listen Better

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Julian Treasure, 5 Ways to Listen Better, Ted Talk (July 2011).
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Summary

Julian Treasure, a leading expert on sound and how to use it best, states that “listening is our access to understanding. Conscious listening always creates understanding.” We listen through filters of our culture, language, values, beliefs, attitudes, expectations, and intentions. To be a better listener, he suggests we listen with an awareness of our filters and adjust them to fit the context and to what we are listening.

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Learning to Listen, Learning to Be Heard

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Donna F. Howard, Learning to Listen, Learning to Be Heard, GPSolo Magazine (Apr.-May 2006).
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Summary

Ms. Howard argues that “good listening” is achieved through the strengthening of interpersonal skills. She emphasizes that lawyers need to focus on what makes each client unique, no matter how many similar cases he or she may have heard over the course of their career. Good listening, Ms. Howard posits, happens when a person is tuned into his or her own feelings and circumstances. This attunement better allows a lawyer to understand how he or she responds to clients. Ms. Howard also argues that for lawyers in particular, it is important that good listening is supplemented with clear communication, including confirmation that the lawyer’s and client’s understanding of the communication is the same. Clear communication requires a lawyer to pay attention to verbal and nonverbal cues, and helps ensure that the client is being treated with professional care as well as sensitivity.

Isolation in the Judicial Career

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Isaiah M. Zimmerman, Isolation in the Judicial Career, 36 CT. REV. 4 (2000)
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Summary

Dr. Zimmerman writes that in his twenty years of working as a consultant or psychotherapist with state and federal judges, approximately 70% of judges that he has interviewed spontaneously have expressed that they feel isolation. The demanding workload contributes significantly to this isolation, as the average judge works evenings and weekends. They have limited time for family, friends, community service, and engaging in other interests. In addition, the Code of Judicial Conduct requirement to maintain an appearance of fairness contributes to the isolation. Judges explain they keep their distance at social and professional gatherings and are careful about their comments. The role of judge itself contributes to the isolation, as well. Once one becomes a judge, “former lawyer colleagues immediately begin to show deference,” and this barrier between judges and lawyers is reinforced by the formalities of the courtroom and wearing of robes. Over time, judges can experience greater difficulty shedding their “robes” even in close personal settings. Another result is a reduction in “honest and robust dialogue” that furthers the isolation. These systemic factors that contribute to isolation are exacerbated by the fact that a majority of judges tend toward introversion, thus making it even a greater challenge to avoid isolation. All of this combines to create greater interpersonal isolation, resulting in a “withdrawal from intellectual and community involvement.”

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Nice Guys Finish First

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David Brooks, Nice Guys Finish First, N.Y. Times (May 16, 2011)
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Summary

Mr. Brooks questions the validity of the prevailing notion that humans are innately selfish, competitive, and motivated only to maximize their own benefit. He summarizes several recent articles and books that discuss the intrinsic human motivation to work in teams and the inherent value of cooperation. “These are books about sympathy, empathy, cooperation and collaboration, written by scientists, evolutionary psychologists, neuroscientists and others. It seems there’s been a shift among those who study this ground, yielding a more nuanced, and often gentler picture of our nature.”

“[W]e often have an incentive to repay kindness with kindness, so others will do us favors when we’re in need. We have an incentive to establish a reputation for niceness, so people will want to work with us. We have an incentive to work in teams, even against our short-term self-interest because cohesive groups thrive. Cooperation is as central to evolution as mutation and selection.”

One study “found that the act of helping another person triggers activity in the caudate nucleus and anterior cingulate cortex regions of the brain, the parts involved in pleasure and reward. That is, serving others may produce the same sort of pleasure as gratifying a personal desire.”

“[N]atural selection takes place not only when individuals compete with other individuals, but also when groups compete with other groups. Both competitions are examples of the survival of the fittest, but when groups compete, it’s the cohesive, cooperative, internally altruistic groups that win and pass on their genes….[H]umans developed moral minds that help them and their groups succeed. Humans build moral communities out of shared norms, habits, emotions and gods, and then will fight and even sometimes die to defend their communities.” 

Fostering Civility Within the Legal Profession: Expanding the Inns of Court Model of Communal Dining.

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Celeste F. Bremer, Fostering Civility Within the Legal Profession: Expanding the Inns of Court Model of Communal Dining.
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Summary

Judge Bremer writes that in addition to good manners and respect, civility also includes “concern for the public good.” Further, she explains that ethics and professionalism are analytically distinct from civility: Professionalism defines “what a lawyer ‘should’ do”; ethics are the “minimums by which a lawyer must act….” She suggests the civility requires lawyers to “go one step further.”

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Staying connected to friends and family, not necessarily your PDA, helps keep stress at bay

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A.B.A., Staying connected to friends and family, not necessarily your PDA, helps keep stress at bay (Sept. 2011)
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Summary

Experts on stress reduction at an ABA meeting in Toronto in 2011 suggested 5 steps to balance one’s professional and personal life:

  1. Stay true to your values.
  2. Don’t demonize the other side.
  3. Maintain connections with friends and family.
  4. Set boundaries around clients contacting you.
  5. Be careful and monitor the impact of electronic-communications technology.

Inter-Cultural Dynamics in Peacemaking: The Arab-Israeli Case in Point, Practice: Skills for Conflict Transformation

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David Kreider, Inter-Cultural Dynamics in Peacemaking: The Arab-Israeli Case in Point, Practice: Skills for Conflict Transformation, (2007)
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Summary

In this essay, David Kreider (not to be confused with international arbitrator David L. Kreider, whom we previously and erroneously attributed to this post) offers an analysis of the role of mediators and different mediation styles and applies his findings to the Arab-Israeli conflict. Drawing upon the work of many scholars who have written about mediation, conflict, and Israel-Palestine, Mr. Kreider compares and contrasts a Western, individualist approach to conflict with a non-Western, collectivist approach. Using scholar Walter Wright’s definitions of “individualist” and “collectivist,” Mr. Kreider writes, “Individualists tend to place a higher value on the preferences, needs, rights, freedoms, opportunities, and goals of the individual, and in the process, relationships are often relegated to a secondary consideration. Collectivists, on the other hand, place a premium on the interests, norms, and values of the group and on maintaining relationships of respect, cooperation, and harmony within the community often at the expense of individual liberties, needs, and interests.” A key difference described by Mr. Kreider between the two approaches is that individualists tend to view conflict as necessary for change, while collectivists most often view conflict as a failure to respect the traditions and values of a group. Another key difference described by Mr. Kreider is that during conflict, individualists tend to favor direct communication and confrontation, while collectivists tend to be less direct about the problems causing the conflict and more focused on maintaining relationships, harmony, and interdependence.

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