Legacies: Reclaiming civility and upholding the rule of law

This is my 100th Daily Journal article. 2025 is my 30th year as a lawyer. And my longtime friend and mentor Presiding Justice Arthur Gilbert is on the cusp of retiring after a half-century on the bench. All of this has got me thinking about how the practice of law has changed over these many years.

The last three decades have witnessed much improvement in the practice of law.

The bar and the bench are far more diverse, not only in the traditional metrics but also in life experience and background. Diversity of the bar opens up opportunities for new lawyers as well as options for clients, and inspires the next generation to aspire to legal careers. Diversity of the bench improves the quality of decision-making (because diversity of life experience leads to diversity of perspective and hence diversity in thought and approach), creates public confidence that justice is being meted out by a judiciary that reflects the community it serves, and inspires the next generation to aspire to judicial careers.

The steady march of technology has also significantly broadened access to justice. Litigants for whom travel to the court is not physically or financially feasible now have the option of appearing remotely for some proceedings. The advent and proliferation of artificial intelligence (AI) has introduced software that assists self-represented litigants in crafting arguments that advocate their positions.

Alas, it has not been all sunshine, rainbows and roses.

From what I have personally observed (which is all I can speak to firsthand), there has been a notable backsliding in civility in our profession. Filings are more commonly sprinkled with histrionic hyperbole and ad hominem attacks, and are more often accompanied by appendices attaching e-mail exchanges between counsel that positively drip with vitriol and contempt. Filings seem quicker to accuse judges of being biased, prejudiced, "on the take," or fools. And counsel during proceedings are more often confrontational, rude or disrespectful to the bench and to opposing counsel. Counsel also seem more willing to make 10 arguments in a filing instead of three, and as a consequence, to make arguments that border on the frivolous. (These observations are in no way a diatribe against newer lawyers, as lawyers with Bar numbers lower than mine have also exhibited this behavior.)

To be sure, this discernible drop in civility within our profession arguably parallels a similar drop in society in general. More and more, being civil or being kind is viewed as being weak. Simultaneously, there appears to be a marked spread in the "us versus them" mentality, where the merits of an argument matter far less than whether the person making the argument is one of "us" or one of "them." The media feeds into this. Instead of reporting that a federal court ruled X, we are told that it was a "Biden appointee" or a "Trump appointee" who made the ruling, as if this were enough to explain away the ruling. This "us versus them" filter no doubt contributes to a lack of confidence in the rule of law; indeed, according to the Annenberg Public Policy Center, support and trust in the United States Supreme Court has plummeted from 75%in 2005 to 44%in 2024.

But the legal profession is not, in my view, wholly captive to this broader societal trend.

Our profession can and should swim upstream against it.   

Ours is a noble profession.            

It is noble because the role lawyers fill has a long tradition of not letting the positions of our clients get in the way of our professional relationships. Admittedly, lawyers are the modern-day equivalent of the champions who resolved matters through trial by combat. Instead of swords, lawyers wield words; instead of broken bones, the losing champion walks away with, at most, a bruised ego.

This lack of lethality means, among other things, that lawyers can -- and, in my view, should -- develop collegial and career-long professional friendships, even when they represent parties on opposite sides of a dispute. Adversaries need not be enemies. Lawyers can -- and, in my view, should -- extend one another professional courtesies (consistent, of course, with their clients' wishes). They can -- and, in my view, should -- meet up for coffee at the beginning of a case if they are unacquainted, a gesture that will go a long way toward ensuring that they humanize rather than demonize one another.

And they can -- and, in my view, should -- tow the line with their clients. Clients hire lawyers to be their champions, to achieve their litigation goals. Back when disputes were settled by combat, the litigant would choose their champion but defer to the champion's skill at knowing when to feint and when to parry; the champion did not defer to the litigant's wishes when it came to swordsmanship. Modern-day lawyers possess an equally unique skill set to which clients may be well advised to defer. Clients can sometimes be upset, anxious to vilify their opposing party or to scorch the earth by never giving up on any argument no matter how close to frivolity it is. But lawyers have a duty to the courts -- and to their clients -- to exercise good judgment about how best to advocate their client's position; discharging that duty may necessitate difficult conversations with the client about why it is more advantageous not to make certain arguments, not to deny certain courtesies, and not to antagonize opposing counsel or the court.

Our noble profession is also a type of vocation.

It is a vocation because the art and craft of being a good advocate is learned -- not from a textbook -- but from watching those who have come before. Like all vocations, the law has masters, journeymen and women, and apprentices. As new lawyers, many of us benefitted from the advice and counsel of more senior lawyers who modeled appropriate behavior with opposing counsel, with clients, and in court; who showed us how to think and act like a practicing lawyer; and who offered career advice. And as we move up in the vocation, it becomes our duty to pay it forward by mentoring the next generation -- by modeling for them how to act with opposing counsel, with clients, and in court, and to dispense the wisdom we have accumulated over the years. If making the practice of law more civil is our goal, we can achieve that by modeling that behavior to the lawyers we mentor.

Increasing civility in the legal profession is not preferable simply because it might make the practice of law more pleasant (although that is a perfectly good reason unto itself!). It is also critical to what is arguably the fundamental function of our profession as a whole in our society -- upholding the rule of law. If we as lawyers are uncivil and mired down in an "us versus them" mentality, we are less likely to able to band together when we face a common threat to the rule of law in our society.

We have come a long way in the last 30 years, and the challenges we face today as a profession are different than those that faced our predecessors. How we deal with those challenges -- whether we ignore them, or whether we renew our dedication to the nobility and civility of our profession -- will define our legacy.

That legacy, as the ancient Greek statesman Pericles once said, "is not [what will be] engraved in stone monuments, but what [will be] woven into the lives of others" -- most notably, into the professional lives of the next generation of lawyers we mentor today.