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Judges’ perspective on courtroom civility, Part 2

Thursday, Dec. 5, 2024 By Hon. Angela M. Ordoñez, Hon. Jennifer Ginsburg and Hon. Christopher K. Barry-Smith

This is the second and final installment of our observations on civility in the courtroom. Although we believe Part 1 contained plenty of reasons to choose civility over incivility, here we offer a few more. We hope that the collection offers a compelling argument to maintain and cultivate civility in the legal profession.

Words and tone matter, in court and out

Lawyers need to be aware at all times what they are saying and how they are saying it. Although plain-language is now preferred to old-fashioned legalese in written and oral advocacy, that should not be mistaken for informality. It remains important to present arguments objectively, avoiding personalizing the dispute.

An attorney who has worked hard for a client and developed a strong belief that their legal or factual position is correct may view their opponent as wrong, misguided or worse. But a personal attack, whether in a pleading or in the courtroom, will never be well received. It will not advance your client’s position, and it will hurt your reputation.

Because it’s understandable that an attorney might get heated over a dispute they’ve been living with for weeks or months, it is essential for lawyers to review their advocacy — the words they choose and the tone they use.

Better yet, have a trusted colleague, unburdened by your history in the case, review your work. A new set of eyes is likely to detect petty squabbles or personal attacks and distinguish those from the important points that are likely to carry the argument.

It may take a consistent dose of restraint, but a good advocate can be forceful and persuasive — indeed, more persuasive — without making it personal or unnecessarily speaking ill of the other side.

Remember to review your written products, whether it is a pleading, letter or simply an email to opposing counsel or the court. One of the most challenging judicial assignments is tackling a discovery dispute (think of a battle over supplementing interrogatories or negotiating a list of deposition topics for a corporate designee) in which the lawyers have attached reams of emails between them concerning the dispute. All too often, the bickering and the tone between lawyers is toxic. Rarely does the context of the dispute justify the way lawyers are talking to each other.

Belittling an opposing lawyer doesn’t look any better when it appears in an email. Even in the context of a discovery dispute, lawyers want to be remembered for their courtroom advocacy or the reasonableness of their approach, not for the nasty tone they chose a few weeks ago when writing an email to opposing counsel.

In all contexts, it pays for lawyers to make sure they are behaving professionally, courteously and decently.

When it comes to professional courtesies, pay it forward

It is understandable, often admirable, when an attorney wants a prompt adjudication for a client, whether it’s the plaintiff or the defendant. But attorneys should presume that there will come a time when they may be asking for the same courtesy when it comes to requests for continuances that opposing counsel seeks today.

Whether due to child care issues, a health concern, or an overloaded schedule, the system relies on attorneys reasonably accommodating scheduling changes when necessary. At a practical level, it will be difficult to persuade a judge that a valid scheduling problem cannot be accommodated.

Attorneys should consider how they will be perceived if a judge is called upon to decide scheduling issues in which opposing counsel has raised a bona fide hardship. Most judges aren’t inclined to ignore real-life conflicts that occasionally arise, and they don’t expect lawyers to ignore them either.

At some point, everyone gets sick and has family emergencies and will need to request a professional courtesy from the other side that will not significantly affect the outcome of the dispute. People will remember if you treat them badly when they have a personal crisis. They will not look favorably on you as a person or as a lawyer when you make them share embarrassing personal details in court filings or in open court that could have been avoided had you agreed to the request out of court.

Of course, there may be exceptions — for serial extensions or criminal cases, especially when a defendant is detained pending trial. But the norm is that professionals should work together to accommodate the scheduling challenges posed by a busy professional life as well as regular life, whether a double-booked trial, an illness at home, or unexpected child care duties.

This is critical institutionally for the legal profession. Surveys in recent years indicate that lawyers are not as satisfied professionally as in prior decades. A 2023 study in Massachusetts indicated that lawyers suffer from mental health conditions, substance abuse, and suicidal ideation at rates higher than the general population.

Professional courtesy may not change workloads, but case by case it may help prevent work from overwhelming other responsibilities, and it can help lawyers feel more satisfied with practicing law.

Civility extends beyond fellow members of the bar, including to self-represented litigants

The same courtesy and kindness that wise practitioners are likely to show the session clerk should apply to others who help the court system work: court officers, interpreters, probation officers, clerk personnel and support staff.

Increasingly, lawyers may find themselves up against a self-represented party in civil matters. This can pose many challenges. A pro se party may not know or follow the rules, may be given second- and third-chances that lawyers would not expect to receive, and may well personalize their legal dispute in attacks on the opposing lawyer.

There may be times when it is particularly challenging to maintain civility when your opponent is an unreasonable or hostile unrepresented litigant. Attorneys must still raise the bar (so to speak) and model civil and respectful behavior. Your role as an advocate cannot be compromised by the opposing party’s poor behavior.

In these circumstances, your communications are best accomplished in writing, and negotiations will be most productive in the presence of a neutral mediator or conciliator. In extreme circumstances when an unrepresented litigant repeatedly files frivolous motions or complaints, attorneys might consider requesting the court to enter a gatekeeper order requiring permission to file with the assigned judge.

Whether facing a difficult opposing counsel or a pro se party, the baseline concepts of respect, objectivity and decency remain as important as ever. The judge will be navigating the same challenges, endeavoring to be fair to a self-represented person without tipping the scales toward them, striving to reach the merits rather than rely on technical infirmities, but still applying the rules. An effective lawyer might approach this as being a partner to the court in obtaining an adjudication of the issues efficiently and likely on the merits.

This in no way means that lawyers should adjust their zealous advocacy when facing self-represented litigants. If you think a claim should be dismissed, then prepare and argue just as you would against an opposing lawyer. The focus should be on the objective shortcomings of the case, not the shortcomings of the person on the other side.

Incivility erodes the integrity of our profession and interferes with resolving disputes. Lawyers, judges and parties all share a responsibility to uphold standards of civility in order to assure that justice is done. Civility in the courts is a tradition worth keeping.

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Angela M. Ordoñez sits on the Probate & Family Court, Jennifer Ginsburg on the District Court, and Christopher K. Barry-Smith on the Superior Court. The judges thank their colleagues who reviewed this article, and especially Boston Municipal Court Judge David Breen for his contributions.

The above article is part of a civility series from the Massachusetts Bar Association Lawyer Well-Being Committee that originally appeared in the Oct. 11, 2024, issue of
Massachusetts Lawyers Weekly.