Wednesday, May 21, 2014

In the law, civility flows from confidence, certitude

We hear a great deal these days about the need for "civility" amongst lawyers -- yes, even among criminal lawyers, for all you literalists out there -- the idea being that, in beating each other over the head, we should neither mean nor take it personally. We are zealous advocates, yes, but not mere mercenaries. We may heap scorn, where warranted, on an opponent's argument, but not on the opponent him- or herself.

How the heck do we do that?

John Flynn Rooney's recent Law Bulletin article on the occasion of the passing of Lloyd Williams (subscription required) includes this tribute from Williams' long-time partner C. Barry Montgomery:
Williams “exemplified the lawyers that existed 20 to 40 years ago when we all knew each other, we dined together, we drank together and we respected each other,” Montgomery said. “We fought like hell in the courtroom, but we were the best of friends once we left the courthouse.”
Montgomery said that Williams was one of the last old-school defense lawyers. Rooney writes that "Williams enjoyed his camaraderie with other lawyers including plaintiff attorneys Philip H. Corboy and Leonard M. Ring. After trials, he had a martini and took his trial team out for dinner."

Social scientists tell us that, as we get older, it is natural to see our vigorous youth as the dying days of a Golden Age, and the present day as a Bronze Era, at best, or maybe even an age of tin. Some may be tempted to dismiss Mr. Montgomery's tribute as just another dubious recollection of a probably fictional time When Giants Walked the Earth. But what if we accept the recollections as largely true? We can then try and figure out how our predecessors could get along so well together, and why we so often have more difficulty.

We all knew each other, Montgomery said. That may not have been literally true, but there's no question that the legal community was smaller a generation ago. We have over 93,000 attorneys in Illinois these days.

But familiarity alone can't account for the idyllic recollections in the recent Williams tribute. After all, haven't we been taught that 'familiarity breeds contempt'?

I submit that the real reason that trial lawyers may have gotten along better in Days of Yore comes from the fact that, in those days, trial lawyers really tried cases. A lot of cases. They were comfortable in the courtroom. They knew what they were doing; they understood what their opponents were doing.

I don't think we have as many trials these days -- we've all read periodic complaints about how the civil jury trial is rapidly becoming an endangered species -- and, even if we do, the trials we have are divided up among many more attorneys.

Additionally, the law has become exponentially more complicated over the course of the last 30 or 40 years. I remember my father would get the new edition of the old Illinois Revised Statutes every couple of years. I remember how the volumes got progressively thicker with each new edition, even as the number of volumes increased. That process did not slow down any when I became an attorney. And case law has expanded with the statutes.

Moreover, today, federal laws and regulations reach into our state courts in ways that our martini-sharing elders could not have imagined back when they were in their prime. Take HIPAA, for example.

It's harder and harder, therefore, for an attorney to truly develop the kind of serene confidence that some of our predecessors seem to have enjoyed. In our fear that we may have missed something we may try to reflexively block anything our opponent attempts because we don't know whether he or she has found an 'edge' or some 'leverage' that will make us look stupid (or, in my case, more stupid).

How can we avoid this temptation to incivility? We must strive to master some area, some aspect of the law where we can speak with the same confidence as our elders. Because the law is so much more complex in the modern age, we may not be able to master the same broad swaths of legal knowledge that our predecessors commanded. We may not rule mountaintops, only hillocks, or maybe only anthills, but we can become thoroughly knowledgeable in something. When we handle cases in that chosen area, we can be as civil as our elders ever were, secure in the knowledge that we know the range of possible outcomes. (And, if we have to step outside that comfort zone, as we inevitably will from time to time, we have to be secure enough to seek guidance and counsel from persons expert in that area, no matter how much gray hair we have.)

Judges have a role to play in this as well. I believe it must be easier for state court judges than those in the federal court. Although the District Courts may have limited jurisdiction, the judges of the Northern District of Illinois are required to become conversant in the huge variety of cases, civil and criminal alike, that may appear on the docket on any given day. Our Circuit Court judges' task is easier because our state courts are more specialized.

Thus, the diligent jurist has a greater opportunity in the Circuit Court system to truly master the law in the types of cases that appear on his or her daily docket, to learn the precedents and to rule in accordance with these. Even if he or she had not practiced extensively in an area to which he or she is assigned, he or she can read up on the area, consult with the other judges in the division (and master the bench book, if there is one) and thereby develop the necessary expertise. When the lawyer-experts collide before the diligent jurist, all can be reasonably confident that, if the facts come in this way, a particular result is certain. There would be a large measure of predictability, even of certainty. If lawyers with these credentials can not be civil to one another in such a forum, at least one of them deserves to be taken to the woodshed.

No comments: