CBA Record November 2018

CBA RECORD

EDITOR’S BRIEFCASE BY JUSTICE MICHAEL B. HYMAN, EDITOR-IN-CHIEF The Opposite of Incivility The opposite of incivility is not civility, it’s professionalism. Professionalism encompasses many attributes, including dignity and respect, honesty and integrity, and self-awareness and self-control, as well as civility. Ordinarily, early in our careers, we decide how we want clients, colleagues, adversaries, and judges to perceive us. We can choose to be lawyers who value courtesy, candor, and con- sideration of others; that is, strive for professionalism. Or, we can choose to be lawyers who value aggressiveness, flashes of anger, and duplicity; that is, engage in incivility. In my view, a lawyer cannot partake in incivility and still embody professionalism. These concepts are mutually exclusive. The vast majority of lawyers shun the tactics of the purvey- ors of incivility, maybe because they realize that few qualities are as important in and out of the legal arena as a good name. Apparently, purveyors of incivility don’t mind acquiring an unsavory reputation in the pursuit of their own ends. Incivility undermines the ability of the legal system to discover the truth. Inevitably, it also creates outsized distractions, delays consideration of the real issues, and increases legal expenses for everyone involved. All of this makes the practice of law unsatisfying, difficult, and more emotionally demanding. What Professor Stephen L. Carter in his book, Integrity , highlighted as wrong with Ameri- cans applies especially to lawyers. Carter wrote that people “care far more about winning than about playing by the rules.” Professionalism implies playing by the rules; incivility implies winning at any cost. Some lawyers believe that unless they retaliate, an eye for an eye, they demonstrate weak- ness. Not true. Reacting in the same vein as the perpetrator resolves nothing. Instead, it merely reinforces the antics. Besides, when both sides roll around in the same pool of mud, both come out dirty. Contrary to popular impression, civility is never a sign of weakness, as President Kennedy said in his Inaugural Address at the height of the Cold War. Actually, the reverse—repeated acts of incivility—signals weakness. These gratuitous acts also signal a weakness of character that motivates these people to behave the way they do. Tens of thousands of Illinois lawyers understand this, and conduct themselves with the utmost professionalism, without resorting to antics or raising their voices or being obstructive. Another frequent response, ignoring incivility, can be equally harmful. Better to assess the situation and decide whether the transgression warrants attention. At the very least, document their every move. Before responding, consider conferring with a trusted mentor or colleague. And when you do respond, whether orally or in writing, be calm, objective, and firm, explaining what was offensive, and why it is unacceptable. Sometimes a dash of humor can help defuse tensions, too. Judges find incivility just as demoralizing (and frustrating) as lawyers on the receiving end. Although judges dislike taking lawyers to task, when the situation requires intervention, backing off gives the appearance that the judge condones the errant behavior. Judges are likely to take into account which lawyer conducted himself or herself in a professional, responsible manner. Once drawn in, the judge should be proactive, instituting measures appropriate under the totality of the circumstances. Tolerance for unprofessional conduct is not a virtue in a judge. Those who use incivility as a weapon should feel embarrassed. They don’t. Should mend their ways on their own. They won’t. Should embrace professionalism. They will, but only if the rest of us show them that upholding professionalism is the bedrock for lawyers. Rehearing “More civility and greater professionalism can only enhance the pleasure lawyers find in prac- tice, increase the effectiveness of our system of justice, and improve the public’s perception of lawyers.”–Justice Sandra Day O’Connor

EDITORIAL BOARD Editor-in-Chief Justice Michael B. Hyman Illinois Appellate Court Associate Editor Anne Ellis Proactive Worldwide, Inc. Summary Judgments Editor Daniel A. Cotter Latimer LeVay Fyock LLC YLS Journal Editors-in-Chief Natalie Chan Sidley Austin LLP

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Carolyn Amadon Jonathan B. Amarilio Taft Stettinus & Hollister LLP Ali Ammoura Cook County Public Defender's Office Amy Cook Amy Cook Consulting Nina Fain Janet Sugerman Schirn Family Trust Anthony F. Fata Cafferty Clobes Meriwether & Sprengel LLP Clifford Gately Heyl Royster Jasmine Villaflor Hernandez Cook County State’s Attorney’s Office Lynn Semptimphelter Kopon Kopon Airdo LLC John Levin Kathryn C. Liss Schiller DuCanto & Fleck/DePaul University Family Law Center Bonnie McGrath Law Office of Bonnie McGrath Clare McMahon Law Office of Clare McMahon Pamela S. Menaker Clifford Law Offices Peter V. Mierzwa Law Bulletin Publishing Company Kathleen Dillon Narko Northwestern University School of Law Adam J. Sheppard Sheppard Law Firm, PC Nicholas D. Standiford Schain Banks Kenny & Schwartz Ltd. Richard Lee Stavins

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6 NOVEMBER 2018