Language and civility.
In recent years, much has been made about the decline of civility among lawyers. Examples abound of uncivil language that was once either unthinkable or improbable--threatening to have an opposing counsel's sexual organs removed if her motion was successful, (1) calling another attorney's motion "total trash" and "worthless," (2) and even repeated use of four letter expletives, in the courtroom no less, to express displeasure at opposing counsel. (3) Such behavior not only contributes to unfavorable public attitudes towards lawyers, but also to rising levels of job dissatisfaction and dysfunction among lawyers and judges themselves. (4)
However, of the many reasons advanced for the causes of incivility--increasing competition for clients; (5) declines in mentor relationships in which older lawyers encouraged civility in younger lawyers; (6) increases in numbers of attorneys and judges which reduce incentives to maintain cordial relationships with other counsel because the lawyers may not meet again (7)--none consider language itself as a factor. This is particularly t interesting since so much of incivility deals 5 with language.
Language is related to the decline of civility in two important ways.
First, the shift in expectations from using formal language in legal discourse to using casual, everyday language has altered the nature of professional interactions among lawyers.
Many years ago, the language of legal discourse encouraged civility due to its formality. Lawyers were more tactful and courteous when addressing others because the language they used encouraged them to show respect and consideration. Moreover, hearing lawyers and judges speak to each other using more formal language reminded one that civility and professionalism were expected.
Today, legal discourse makes no such demands, and provides no such reminders. In fact, the situation is such that often the language of law offices and of the courtroom is no different than the language of the street corner. Verbal abuse is common, swearing is routine, and attorneys and judges exchange volleys of verbal abuse.
In her Nobel Lecture, author Toni Morrison said, "[Language] not only expresses the limits of knowledge, it limits knowledge." (8) Our language limits civility because it neither inspires respect nor demands that we respect each other.
Second, the strict focus in legal education on a certain type of language--the language of cases, statutes, and regulations--reinforces a perception that is detrimental to civility. This is the perception that the language of the law is more important than the language of relating to other people.
This perception is an obstacle because civility is not a matter a law. Civility is an attitude, a way of thinking that demands people be treated with dignity and respect. The language of cases, statutes, and regulations is efficient for teaching the law, but it does little to inspire a way of thinking that encourages one to treat people better.
Despite the role of language in the decline of civility, language may have a role to play in the solution. Possible ideas include:
* Reintroducing elements of formal language in legal instruction. In the last 50 years, the language of legal education has become increasingly informal. Many professors, for example, have stopped the practice of addressing students in class by their title and last name. While this practice is not itself uncivil, reintroducing the practice of calling students by titles and last names, and requiring students to address each other in the same manner could reinforce a notion of civility towards others.
* Reintroducing the practice of formal writing. The current practice in legal education is to teach students to keep writing simple and straightforward. No Latin phrases, no cultural, literary, and historical allusions, no sentences longer than 30 words, and certainly no two-syllable words when a single syllable will suffice.
Arguably, such an approach makes writing more readable, but it comes at a price. Such language does not encourage reflection on, and articulation of, the values and ideals that shape our profession.
There was once a time in our nation's history when lawyers were masters of language. Just consider the writings of Louis Brandeis, Benjamin Cardozo, Oliver Wendell Holmes, Jr., or Roscoe Pound. Through mastery of language one came to understand the ideals and values of the profession. Through mastery of language one learned what it meant to behave professionally. Perhaps requiring students to practice formal writing could do the same today.
* Incorporating literature into discussions on civility and professionalism. No one has ever said after reading the Model Rules of Professional Conduct, "Wow! Rule 1.6 is incredible! That really made me want to treat clients and other lawyers better!" However, reading literature can encourage personal reflection on--and internalization of the essential values of civility--respect, tolerance, human dignity, and compassion. Law school seminars and continuing education courses could incorporate discussions of literary works as a means of thinking about issues of professionalism and civility.
In a letter to his nephew Peter Carr, Thomas Jefferson wrote "[R]ead good books because they will encourage as well as direct your feelings." (9) This simple gem of wisdom has been overlooked in the current debate regarding incivility. In the struggle to make the practice of law a more civil profession, it is important to remember that words, the tools of our profession, can be our enemies or our allies. Our rules and regulations can teach people how to be better lawyers, but we need language that can make lawyers be better people. We need language that elevates; language that inspires.
(1) Raymond Ehrlich & Scott D. Makar, Professionalism, Civility, and Aspirational Conduct, FLORIDA BAR JOURNAL, Mar. 1994, at 14.
(2) Id., note 1, at 14.
(3) Christopher J. Piazzola, Ethical Versus Procedural Approaches to Civility: Why Ethics 2000 Should Have Adopted a Civility Rule, 74 U. Cob. L Rev. 1197 (2003).
(4) "Susan Daicoff, Lawyer, Know Thyself: A Review of Empirical Research on Attorney Attributes Bearing on Professionalism, 46 AM. U. L. REV. 1337 (1997).
(5) Cathleen Cavell, Please Please Me: Voluntary Civility Standards for Lawyers, available at www.state.ma.us/obcbbo/please.htm.
(8) Toni Morrison, Nobel Lecture (Dec. 7, 1993), available at www.nobel.se/literature/ laureates/1993/morrison-lecture.html.
(9) Letter from Thomas Jefferson, to Peter Carr, nephew (August 10, 1787), in The Letters of Thomas Jefferson: 1743-1826, available at From Revolution to Reason: http://grid.let.rug.nl/~usa/P/tj3/writings/brf/jef161.htm.
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|Publication:||Florida Bar News|
|Date:||Sep 1, 2004|
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