April 14, 2017
With all due respect, show some civility
By Melaine Shannon Rothey
Although I do not believe that I should have to discuss – even harp on – the issue of civility amongst lawyers and the bench, a few recent experiences encourage me to do so. In Pennsylvania, we have Rules of Professional Conduct, Rules of Judicial Conduct and a Code of Civility. Did these Rules exist almost 235 years ago when our Supreme Court was formed? No. Why not? Apparently, the founders of the Court did not need them because ethical rules and basic civility went without saying. There was inherent respect between lawyers and judges, whether in correspondence, or in pleadings, or in person, or, certainly, in a courtroom.
Where did that civility, respect and cordiality go? Did it run out the door with powdered wigs, dark suits, cigars in the hallways and no women in the courtroom? I sincerely hope not. Sadly, I think that it became a tragic result of the melding of the Silent Generation and the Baby Boomers with the Gen Xers and the Millennials. Lawyers born before the end of the Great War believe that you should work, and work hard, for what you want. The Boomers, like me and my siblings, were more experimental and decided that we wanted to save the world. Contrast that with the Xers who are generally highly educated (but not as socially aware) and the Millennials, including my children, who are confident and tolerant, but also entitled.
Where do we go? Can we fix this? Of course, I have a few suggestions:
First, Gen Xers/Millennials, you must remember that, like it or not, “we” are your opposing counsel and “we” are sitting on the bench. “We” appear in court “dressed for court.” Do you want the judge to have on “business casual” when your client is in the courtroom? I don’t think so; so, out of respect for the court and your client, do not dress like you have something better to do this afternoon. And, equally as important, do not approach the bench with your coat on (like you are in a hurry to go somewhere else). I know this might sound rather old–fashioned and preachy, but read the first sentence of this paragraph again and remember that “we” are accustomed to certain standards.
Second, in my humble opinion, although it has been supported by several judges, do not, under any circumstances, argue with or interrupt opposing counsel, especially in open court. Those of us who are litigators want to scream “No” when opposing counsel says something – even a minor point – with which we do not agree; but, we must bite our tongues and scribble a note on our ever–present legal pad, so we are sure to respond/address the issue during our argument time. That being said, I am calling upon the members of the judiciary to demand decorum and civility in your courtrooms, keeping in mind that the judge’s temperament and demeanor set the tone for the attorneys.
Third, CAPS, or BOLD, or underlining does not make your argument any stronger and it certainly does not make it any better than my argument. In fact, based upon the many judges that I have talked with – including, the Hon. Lawrence J. O’Toole for whom I have clerked during the past 13 years – it is actually really annoying and makes your argument look weak. You look like an over–zealous advocate who has bought into your client’s position and has lost your duty to civility. BOTTOM LINE – be a zealous advocate on behalf of your client, but remember your duties to the profession, opposing counsel and the court.
Fourth, sending “snarky” letters to satisfy your client does not promote good legal practice or civility in the profession. These types of letters mean that you are letting your client run your office, which is a very bad idea. We are not our client’s employees; rather, we are their advisors. Make sure that your client understands the difference.
Finally, it is imperative that we treat our own staff and associates, opposing counsel’s staff and associates, and all court personnel with the utmost respect. These are the people that make us look good, meet our last–minute demands, give accurate messages to opposing counsel, answer our procedural questions and tell us what the judge “likes” or “wants.” If you have long–time staff or associates, as I do, then you are doing something right. If you are changing assistants or associates as often as I change purses, you are doing something wrong – and no, it is not “their” fault. It is your fault, coupled with your inability to recognize this fault.
Again, when I am in charge of the world…