Monday, September 19, 2022
Several months ago, a lawyer shared with me a recent federal district court order in a discovery dispute. In it, the judge admonished the attorneys on both sides for uncivil and unprofessional behavior, using words like “misleading,” “histrionic,” and “uncalled-for” to describe comments by the attorneys in their filings. At the end of the order, the judge announced that she was cancelling the discovery conference and directing all the attorneys to “READ and REFLECT” on a speech that Justice Sandra Day O’Connor gave on professionalism in 1997. For their convenience, the judge appended the speech at the end of the order.
Justice O’Connor’s speech on professionalism is a true masterpiece—one that should be read by every law student and lawyer. In it she reminds us that “[p]ersonal relationships lie at the heart of the work that lawyers do.” Unfortunately, as she observed, lawyers often seem to focus on “themselves generat[ing] conflict, rather than focusing on the dispute between the parties they represent,” which results in “distort[ing] the adversarial system.” Not only does it distort the system, it can cause you problems later in your career, as I always tell my students. You never know when an opposing attorney in one case by be aligned with you on another. Or, perhaps, you will end up working together at a government agency or firm later in your career. The practice of law is funny that way.
The mindset of viewing litigation and dealings with other attorneys as “war,” is not the only way to approach the legal profession. As Justice O’Connor explained, with an eye toward appellate advocacy,
Argument, for example, can be thought of as discourse. I know that when I ask a question at oral argument, it is not meant as an attack; it is an invitation for counsel to address an area of particular concern to me. The most effective advocates respond accordingly, answering honestly and directly. Indeed, one good approach to oral advocacy is to pretend that each judge or justice really wants to vote your way—and will—but only if you can set the judge's concerns to rest by answering that question which the judge finds troubling.
Justice O’Connor opined that “it is by deed rather than decree that attorneys teach each other that it is possible to ‘disagree without being disagreeable.’” I agree. And, as we continue into a political season full of debate and disagreement, I think that this is true more broadly. This past week I served on an ACS Constitution Day panel at ASU Law. While I disagreed with the views of my co-panelist, we were able to engage in a polite, substantive, respectful dialogue about recent Supreme Court cases.
I commend Justice O’Connor’s remarks to all attorneys (even those who aren’t in a heated discovery dispute). We owe it to our clients, and to our profession. As Justice O’Connor noted, “incivility disserves the client because it wastes time and energy-time that is billed to the client at hundreds of dollars an hour, and energy that is better spent working on the case than working over the opponent.”