The Journal of The DuPage County Bar Association

Back Issues > Vol. 14 (2001-02)

Honorable Marvin E. Aspen

I am really pleased to have the opportunity to come out to DuPage County. I am a city boy: I was born in Chicago, went to school in Chicago, was raised in Chicago, practiced law in Chicago, and it is special to be here and to see so many old friends.

I consider myself, first of all, a lawyer. I am a lawyer who happens to have the position of judge. We are really all in this together. I’d like to talk about how the civility movement started and then perhaps tell you a little bit about why civility is not a matter of manners—of politeness—but is an essential tool in every advocate’s arsenal if that advocate wants to be effective. Let me begin my remarks by quoting from a critic of our adversary system:

"The idea that procedure must of necessity be wholly contentious disfigures our judicial administration at every point. It leads counsel to forget that they are officers of the court and to deal with the rules of law and procedure exactly as the professional football coach with the rules of the sport. The effect of our exaggerated contentious procedures is not only to irritate parties, witnesses, and jurors in particular cases, but to give the whole community a false notion of the purpose and end of the law. Hence comes, in large measure, the modern American race to beat the law. If the law is a mere game, neither the players who take part in it nor the public who witness it can be expected to yield to its spirit when their interests are served by evading it. And this is doubly true in a time which requires all institutions to be economically efficient and socially useful."

These words were not uttered as part of the recent barrage of criticism of the legal profession. These are the words of Dean Roscoe Pound in his 1906 message to the American Bar Association. Dean Pound’s words of warning nearly a century ago were aimed at an audience made up exclusively of our profession. His warnings were discussed briefly and received little or no public attention.

The concerns about the lack of civility in the legal process as expressed by Dean Pound, however, are no longer a matter confined solely to polite professional discourse but have become part of an ongoing national debate by lawyers and lay people alike that goes to the future viability of our justice system as we know it.

Back in the early part of 1989, I received a call from Bill Bauer, who was then Chief Judge of the 7th Circuit. He said, "We’ve got a problem. I’ve been told by some lawyers we’ve got a problem" -- he didn’t say a "civility" problem because that word had not been coined at the time. He said, "We’ve got a problem with misbehavior in some of our courtrooms." I thought to myself, "uh oh, what have I done? Somebody probably told Bill about something I had done in my courtroom." To my relief, Bill said, "We’ve got a problem in terms of relationships between lawyers and judges. I’m going to appoint a committee to look into the problem and make recommendations, if need be, and I’d like you to chair that committee." That was the beginning of the 7th Circuit Civility Committee.

We met for a couple of years. We surveyed all the federal judges in the 7th Circuit and about 1,500 lawyers. We used a detailed questionnaire that a social scientist helped us prepare in order to learn what the feeling was in the legal community about the existence of abrasive relationships between opposing lawyers or between lawyers and judges, and to find out what other gripes lawyers might have about the way they treated each other. We found that lawyers and judges overwhelmingly thought that there was a serious problem with incivility in the legal profession, and that they were looking for ways to change the steady trend in the law away from a professional collegial set of relationships to a very abrasive business-like bottom line mentality.

We looked at the results of the survey and examined what literature was available on the issue, and we made several recommendations which were set forth in our interim and final reports. Many of our recommendations have been adopted by courts all over the country. For example, we recommended that civility be incorporated in law school curricula, and most law schools now do have civility as part of ethics or as some part of the other substantive courses in law school. We talked about the obligation of the bar associations to work on this issue and the obligation of law firms to train both their new associates and senior partners that civility is an essential part of legal practice. But I think the key part of our recommendations came in the drafting of a set of standards. These were different from ethical standards: they were simply a set of agreed-upon mores or principles that existed for years in the adversary system. We felt they ought to be put in writing, passed down from generation to generation of lawyers, and agreed upon by the legal profession as the way we want to conduct our business.

There was a reason for the need. I mentioned one—the bottom line, business-oriented mentality of the profession. Law firms are bigger, courts are bigger and busier, and mentoring in the law firms, certainly the large law firms, is almost nonexistent.

The media, particularly the entertainment media, misportray what trials and courtrooms are all about. Clients have expectations that some of the sneaky, disrespectful, or abrasive practices they see through the media’s portrayal of, for example, the O.J. Simpson trial or the Bush/Gore election wrangling are, in fact, the way it is always done or should be done. Young lawyers whose primary education before they went to law school was through the media sometimes have warped expectations as to what the process is all about. So there were substantial changes in the profession, again, the perception of the profession, that really had to be addressed or everything good about the practice of law that had been built up to that time was certainly going to be eroded because of all of these negative things that were happening. So we came up with a set of standards, and we had an important decision to make: should we make them totally aspirational, or should we suggest that there ought to be some kind of sanctions for violation of the standards? We opted for the former. We did not want to create a whole cottage industry of satellite litigation. Instead, we simply wanted to get a consensus among the bar that this is the way we want to practice. And the standards really are broken down into really three categories: lawyers’ obligations toward each other, lawyers’ obligations toward the court, and for the first time discussed anywhere, the court’s obligation toward lawyers.

We felt that the court had to play a very important role, if not the key role, in supporting civil behavior. And that’s not to denigrate the roles of the others as we suggest them. Judges have to be role models. If we cannot conduct ourselves with civility, dignity, and professionalism, we certainly cannot expect the lawyers before us to do the same. If we judges permit lawyers to act in an unprofessional, uncivil manner in matters before us in the court, we certainly cannot expect other lawyers not to misbehave. There has to be a disincentive for "Rambo-like" behavior, and it is up to the judges to recognize such behavior and antics, and to make sure that lawyers are discouraged from acting uncivilly, whether through admonitions from the bench or even sanctions for particularly egregious behavior.

I really thought that this was a very quiet thing that was just going to be talked about in our circuit and maybe we’d do something here and that would be the end of it. But to be frank with you, I was shocked at what happened, what has happened in the past dozen years. As I expected, our standards were adopted by the 7th Circuit, which means that every lawyer going forward who wants to be admitted into practice in the 7th Circuit has to certify that he or she has read the standards and is willing to abide by them. That was one way we could be sure that the information was at least conveyed to the lawyers who are coming in new to the process.

What happened after that really was the surprise; that is, standards were adopted all over the country, first in a piecemeal manner. The EEOC, for example, adopted them. Different bar associations, such as the Chicago Bar Association, adopted them. Other circuits throughout the country, other bar associations, other courts. Finally, the litigation section of the American Bar Association adopted them, and shortly after that, the standards were sent to the House of Delegates of the American Bar Association and the American Bar Association adopted them nationally. They’ve been written about numerous times and used as a model for many lawyers’ behavior. The civility movement has taken on a life of its own independent of the standards. As I said before, the word "civility" was not in our lexicon until the middle ’80s. As a result, it is clear that across the board lawyers and judges throughout the country agree that it is important for a whole variety of reasons that we conduct ourselves in a professional manner.

Let me just close by addressing a few of the reasons why I think we ought to do that and why we are on the right course: We are really all in this together. There is stress in being a judge—and there is certainly stress in being a lawyer. Those stresses, I think, are part of the profession, and they are healthy. They make us do a good job. The unnecessary and unhealthy stresses are the ones we bring upon ourselves by creating a professional environment that is unnecessarily contentious.

I recall the good old days—and it still happens to a certain extent—when lawyers treated each other—although they fought bitterly—in a brotherly manner, and if there were women in numbers in the practice in those days—and there should have been but there weren’t—they treated each other sisterly. I think Shakespeare, a great admirer of the profession, notwithstanding of the popular distortion of the context of his "let’s kill all the lawyers" line from Henry the Sixth, writes in Taming of the Shrew, "and do as adversaries do in the law. Strive mightily, but eat and drink as friends." And that really is the type of environment I think we all want to practice in.

There are other reasons why it is really important for us to think seriously about the practical consequences of conducting ourselves in a civil manner. Some trial lawyers, I think, forget that we judges have a book on the lawyers that practice before us just like you lawyers have a book on every judge before whom you practice. You appear before this judge and the judge has done something positive, negative, and what do you do? Do you keep it quiet? Of course not. If you are having a beer with one of your friends or you are talking about somebody, somebody is going into Judge Aspen’s courtroom, you tell them all about Judge Aspen, warts and all.

Well, I assure you that we judges do exactly the same thing. If somebody performs in my courtroom in a very disingenuous manner or I have found through the pretrial of that case or it has been brought to my attention that that lawyer conducted himself or herself un-professionally, there is no judge-lawyer confidentiality that I know of that deprives me of sharing that with my colleagues; and I will. We will have lunch together, we will talk. I will say, "Hey, you know what happened in my courtroom this morning?" And I will spare no names. I won’t talk about lawyer A or lawyer X. I will tell exactly what happened.

Now, that lawyer a month or two later goes before one of my colleagues. I assure that lawyer that my colleague is not simply going to punish that lawyer because of that conversation, but think for a minute. Two lawyers are arguing about something, the judge has to make a decision, the credibility of both lawyers is at stake, it’s a close call, and consciously or not, how do you think that case is going to turn out? In the short term what’s going to happen to you vis-a-vis your colleagues or the judges and in the long term, in terms of your reputation, civil behavior makes practical sense.

Every young lawyer starts out in the process with a good reputation. A lawyer gets that whether that lawyer has earned it or not. It’s the easiest thing to obtain. But once you ruin that reputation, it’s the hardest thing to rehabilitate. I cannot tell you how that comes back to haunt the lawyer. We recently selected a magistrate judge for our court, and we were talking about some of the candidates. One candidate apparently had been involved in something that made a negative impression on a judge 25 years ago. To my knowledge, this lawyer has conducted himself in an admirable way ever since and really was a very fine lawyer in every sense of professionalism. But wouldn’t you know it, that negative thing came up during the discussion. It shouldn’t, but it did. So it’s really important to think about the long-term and the short-term effect of your actions.

There is another reason why we ought to think in terms of professionalism as not being something that is really nicey-nicey or something from the Victorian age but something that is really important in terms of our obligations, and that is the effect that incivility and lack of professionalism has upon lawyers as a profession and upon the role and effectiveness of law and the administration of justice in our country.

The current derision of our legal system in this country has a great effect on ordinary citizens who depend on the courts to administer justice. But this role is denigrated when we act uncivilly, and such behavior is magnified by the media. The legal profession has gone through a down phase lately. We are political fodder, both when judges and lawyers are campaigning and in terms of comedians having a field day -- I mean, we are the blonde jokes of the year 2001 – and also in terms of the talk show hosts pandering to the most negative images of the few lawyers who misbehave. This all affects the ordinary person who, in spite of all that, comes into our courtrooms and deals with lawyers and forms an impression. So maintaining confidence in the legal system is important to the democratic process, because courts of law have no armies to enforce their rulings.

American courts rely upon the trust and the confidence of the public to make sure that the decisions we make are implemented, and this is really the alternative to coup d’etats in this country, this is why civility is that important.

Let me give you an illustration: Several years ago, I served on an American Bar Association committee to make recommendations to improve juror comprehension. As part of the study, we observed and reported on jury comprehension in several complex civil cases across the country. After one particularly contentious session in which the lawyers were gratuitously being abrasive to each other, being disingenuous with the judge, and generally acting in a truly unprofessional manner, some of our committee went to the jury room after the jury had gone to discuss what had occurred during the day.

A jury doodle, including a poem of sorts, was found crumpled in the wastebasket in the jury room where one of the members of our committee retrieved it. Let me read you this short verse that a juror wrote on this doodle which this juror had no idea that anyone would ever see. This juror wrote: "Oh give me a break, just a ten-minute break, when I don’t have to sit and listen to this shit. Oh give me a chance to get up and dance, for it’s such a bore, I long for the door."

This poem in its own way speaks far more eloquently than I can in showing how important it is for we lawyers and judges to make the citizen’s courtroom experience one which will not lead to disrespect for the justice systems which we as lawyers and judges hold in trust for the public.

It gives me great pleasure to appear here with the DuPage Bar Association and Northern Illinois University. It is really programs like this that make me very confident that we have turned the corner and that civility and professionalism is what the American Bar and the American bench wants and that we are well on the road to achieving the reforms I think we all agree are necessary. Thank you very much.


 
 
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