The Case for Civility: My Perspective

As a young Chicago lawyer who enjoyed the practice of law, I was once assigned a case representing a defendant in DuPage County. After several phone calls to the plaintiff’s attorney, I realized I would have to go to Wheaton to present a routine motion. I arrived on the day to present the motion and was watching attorneys looking at the call sheet to determine where they were on the call. The individual in front of me with his younger female associate was pointing to the sheet and said, “We are number five on the call.” I realized I, too, was number five on the call, and went to shake his hand. In an abrupt, loud, gruff voice, he said “I’M not shaking his hand, you’re on the other side.”

Our case was called, the motion was presented, the relief was granted, the order signed, and we began to leave the courtroom. The judge stopped us and said, “Gentlemen, come back up here.”  As we approached the bench, the judge was looking at me, and being a young lawyer, I thought maybe I wrote the order incorrectly. The judge began by saying, “Gentlemen, I noticed that Mr. Fioretti is from Chicago, which is in Cook County. And the rules of DuPage County are different than in Cook County. And as such, Mr. Fioretti should know the rules of this courthouse. So, if Mr. Fioretti violates a rule of the supreme court or of DuPage County or of this courtroom, I want you, opposing counsel, to call me immediately.”

At that point, I thought, “This is not going to go well for my client and myself,” and I can see that the other attorney having a very big grin on his face, nodding in agreement with chest puffed up. The judge went on, “And I will tell you why you can call me directly if Mr. Fioretti violates a rule of the supreme court, or a rule of DuPage County or a rule of this courtroom. Because I taught Mr. Fioretti everything he knows about civil procedure and civil practice. And after hearing the laughs from the other attorneys and feeling much better about the case the other attorney chased after me as asked, “Why didn’t you tell me you knew the judge?” To which I replied, “You wouldn’t even shake my hand.”

Civility is an attitude that lawyers must treat individuals, witnesses and opponents with dignity and respect. What do we learn from that courtroom experience?

1. Communication is the foundation for civility and setting the tone for respect.
2. Mentoring is key to civility.
3. Control of the courtroom.

Lawyers are expected to be zealous advocates for their clients, yet maintaining a reputation for integrity and civility in the profession. Civility can manifest itself in returning phone calls, shaking a person’s hand, or how you treat your opponent or witnesses inside and outside the courtroom.

While that happened many years ago, the focus today has shifted to immediate results and winning at all costs. Telephone calls have given way to emails and texting no matter what time of day.

The second lesson from that situation is mentoring. Would you want to be a young attorney working in the office with this individual? Mentoring of young lawyers has diminished. We have those that have been mentored in civility and those whose exposure has been to unprofessional and discourteous conduct. Abuse and antagonistic behavior reflect poorly upon the individual attorney and demeans our profession. We must remember that behaviors affect outcomes of cases. Mentoring for future trial lawyers is a necessity in our profession. We are expected to fight the good fight, our reputation and the profession are more important than the case. Setting the example is important for this noble profession.

On the third point, control of the courtroom, in that example given, I believe many attorneys and the judge knew the opposing counsel. But it was clear the judge disclosed the fact that he knew me, and he wanted to set the tone for civility in the courtroom. The Code of Judicial Ethics requires that judges be patient, dignified, and courteous to all in their courtroom. Watching many judges, they do not all appreciate being in a position of setting the tone of civility, but they always must.

And accordingly, it is just not appreciated being called upon to bring civility to the attorneys in a court case. During the ISBA conference on Civility and Professionalism 2019: Properly Handling Emerging Issues with Confidence, retired judge, the Honorable Stephen R. Pacey laid out four rules governing the practice for counselors, advisors and advocates. One, follow the golden rule. Two, do the right thing. Three, what would your parents think? And four, we know it when we see it.

As I heard those four rules, I was reminded that we are in a service business. The economics of the practice of law have changed a lot in the last 25 years. We are in a noble profession, but a service profession. And our clients really don’t want to be our product. In our profession, it takes years to build a reputation of honesty, professionalism and civility, but it takes only minutes to lose them. Together, we must be activists for civility in our profession. We must mentor the young, and the old, in ways that elevate our profession. I am reminded of a quote from a play that I was in in high school. And yes, Shakespeare had many things to say about lawyers in his many years of writing. But one that struck me the most was, “And do as adversaries do in law, strive mightily but eat and drink as friends.”