Washington Lawyer - January/February 2025 - 12

FEATURE
" At the program's inception and, regrettably,
continuing until the present, the themes of
civil discourse and sound decision making
remain imperative for us to highlight, especially
in our younger generation, " Rosenberg
says.
CD3 is intended to teach students about
how civility functions within the justice system
and society at large, and to provide tools
to allow them to assess and mitigate their
own interactions. During the program, volunteer
judges and attorneys guide participants
through discussion and debate involving
fact patterns, such as when an individual
is accused of making online threats through
the use of emojis.
" Nobody is saying that you have to reach
agreement on a dispute ... But you certainly
need to be civil in the process and try because
it is likely better for your client. "
Based on its success with high school students,
the program has been adapted for college
and law students. The latter group uses
a different set of materials with a stronger focus
on the legal issues, challenging students to exercise both their legal
judgment and their notions of civility and fair play. The program came
to William & Mary Law School this past fall and ran at Duke University
School of Law for the second year. The law schools at Tulane University
and Boston University are also developing civility programs.
INCENTIVIZING CIVILITY IN LAW
By Lloyd Liu
Reports of the decline in civility have been persistent and
longstanding.
In May 1971, in a speech at the American Law Institute, then-Chief Justice
Warren Burger remarked, " [A]ll too often, overzealous advocates
seem to think the zeal and effectiveness of a lawyer depends on how
thoroughly he can disrupt the proceedings or how loud he can shout
or how close he can come to insulting all those he encounters -
including the judges. "
Justice Anthony Kennedy, in his address at the 1997 American Bar Association
Annual Convention, stressed that " [c]ivility is the mark of an
accomplished and superb professional, but it is even more than this. It
is an end in itself. " He added, " We are civil to each other because we respect
one another's human aspirations and equal standing in a democratic
society. We must restore civility to every part of our legal system
and public discourse. Civility defines our common cause in advancing
the rule of law. "
More recently, the Illinois Supreme Court Commission on Professionalism
released Bullying in the Legal Profession: A Study of Illinois Lawyers' Experiences
and Recommendations for Change (October 2024). Among
Over the years Rosenberg and Bloom have become ambassadors of civility.
At a recent talk they gave at the Harvard Leadership Institute, the pair
discussed the advantages of civil exchange, urging attendees to take
the time to meet with adverse parties and to find common ground. Acknowledging
that doing so takes time, Rosenberg proposed that such
other things, the study laid out suggestions for ways that courts can
handle incivility in the courtroom.
Why does civility matter? " Judges and courts and our entire legal system
rely on the respect that the law earns by the way it treats people, "
says Merril Hirsh, executive director, ex officio, of the Academy of
Court-Appointed Neutrals. " Maintaining an uncivil system, in addition
to playing into tropes about lawyers that have persisted forever, plays
into the sense that the system is one in which only the wealthy and
politically powerful can succeed. "
" If judges are forced to sanction people in order to get them to act
civilly, we've got a very weak system. So, we have to set up a system
where people are going to be inclined to act civilly, " Hirsh adds.
Policy and rules have utility but clear limits. The meet-and-confer requirements
under the Federal Rules of Civil Procedure may be a good
example. Before a discovery motion can be filed, parties are ordinarily
required to have a good-faith meeting to discuss their differences and
see if there is any way to resolve some or all of them.
Hirsh became adept at navigating the meet-and-confer requirements
early on as an attorney in the U.S. Department of Justice's Civil Division.
He recalls having to respond to lengthy, somewhat angry letters from
opposing counsel in a particular case. " And so every single day, I would
waste time writing a response to the letter in a measured way that
didn't attack my opposing counsel and explained what was going on, "
he says. " One thing I learned in retrospect is I shouldn't have responded
every day. I would've gotten half as many letters if I waited a day
12 WASHINGTON LAWYER
* JANUARY/FEBRUARY 2025
Washington Lawyer - January/February 2025

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