Volume 158, No.

23

Thursday, February 2, 2012

Incivility often appears in written form

Valentines Day is coming up. The holiday elicits a wide range of emotions in folks depending on their circumstances and inclinations; contentment, happiness, bitterness, apathy, contempt, confusion, awkwardness, panic. Cognizant as I am of President Dwight D. Eisenhowers prescient warning about the greeting card/industrial complex, Im not a big fan of Valentines Day, a statement I can make both with sincerity and without fear of retribution as Im relatively confident that my beautiful non-lawyer wife of 17 years doesnt read the Chicago Daily Law Bulletin with any regularity. If, however, I am mistaken on that last point, I love you very, very much, babe. Ill make some reservations. But regardless of ones view of the day itself, there is no denying the power of love, in particular loves ability to inspire folks to express the depth of that emotion through the written word. History has given us an infinite number of poems and sonnets about love as well as heartfelt love letters expounding upon this most human of emotions. And while Jackson Browne sang of the strangled cries of lawyers in love (I dig you, Jackson, but that song is actually quite lame), love is not the emotion usually expressed by us when we put pen to paper in the legal profession. In fact, to the extent that our correspondence or briefs contain any emotion at all, it usually falls on the other end of the spectrum, from stern admonition, to righteous indignation, to outright and unconcealed contempt. When we think about incivility in our profession, which we at the commission do with a sad but determined regularity, we usually picture verbal hostility or unsportsmanlike conduct: the unnecessarily obnoxious inquisitor at a deposition; angry words and name calling toward opposing counsel in the hallway outside the courtroom; intentionally obtuse, incomplete or evasive discovery responses and tactics. But our writing can also be a depository for uncivil and counterproductive behavior, a reality that is only magnified and made more common because of e-mail, texting and instant messaging. Now, Im nothing if not self-aware. I am, for example, cognizant of the fact that not everyone agrees with me that Roadrunner by the Modern Lovers is the greatest rock song of all time or the fact that I become a paranoid hypochondriac and Weather Channel junkie the week before I take a vacation. I plead guilty to on more than one occasion tossing anger and resentment with rhetorical flourish to create an unproductive and unprofessional word salad. It never accomplished anything and always made me look foolish in the end. My written transgressions, as I believe is the case for many lawyers, primarily came in two areas: The motion to compel and/or for sanctions: Wait til Dad comes home and sees that you tried to give yourself a Mohawk; youre gonna be in so much trouble! That sibling refrain (with or without Mohawk) is often the approach taken when we feel the need to call out opposing counsel for their conduct. When that conduct reaches the point where were asking the court to impose a sanction, there is a tendency to use a plethora of colorful adjectives to paint counsels behavior as beyond the pale, an affront to the court, a flaunting of the rules so egregious that only the most severe penalty can

Professionalism on Shuffle
By David S. Argentar

David S. Argentar is deputy director of the Illinois Supreme Court Commission on Professionalism. He also writes on the commissions blog, which can be found at blog.ilsccp.org.

deter such conduct in the future. As much fun as it is to be able to use the word contumacious in a sentence, going ballistic in a pleading, regardless of how tweaked you are, is usually unnecessary and often counterproductive. I recently attended a presentation on professionalism by Supreme Court Justice Anne M. Burke, in which she emphasized the importance of maintaining a professional tone in written submissions to the court. The offending behavior, if truly warranting sanctions, should largely speak for itself and the umbrage youve taken and prejudice to your client can be conveyed in a sober, deliberate and dispassionate way without resorting to name-calling and insults. I recall filing a motion for sanctions against a defendant because the day before a court-ordered expert inspection of his computers hard drive, he had run two programs called CyberScrub and the awesomely named Evidence Eliminator. I think I just slapped on a caption to my experts report, signed it and let it ride. Good result. Correspondence and e-mail to opposing counsel: If one is inclined to hurl an insult, name-call or otherwise belittle opposing counsel, it is often easier to do so in writing than it is face-to-face. When something your opponent does pushes all of your buttons, it is easy to sit down and start banging away on the keyboard, spewing your outrage and pique in the most colorful language you can think of and immediately sending your brilliant missive via e-mail. But the problem with e-mail is that it often removes the opportunity for reflection, cooling off and self-editing and enables impulsiveness and emotion unchecked by reason. Its so easy to press Send or Reply. Back in the day, with dictaphones and paper and such, I would on occasion rant onto a tape, run down the hall, drop the tape on my assistants desk and ask that it be typed up pronto. Almost every time, however, being able to have those few minutes to chill and then reread on paper what I had written allowed me to come to my senses and realize that my draft would in fact speak for itself, badly, if and when it was attached to a motion for sanctions. Ive heard from many wise attorneys who have suggested doing the same thing with e-mail by sending it first to yourself or printing it out so that you can see how it looks on paper. Molire once said: A wise man is superior to any insults which can be put upon him and the best reply to unseemly behavior is patience and moderation. Good advice, and trust me, when looking for tips on attorney professionalism from 17th century French playwrights, Molire is the go-to guy.

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