This is not another ode to the need for civility in our profession. Much ink, better written, has already been spilled.¹ The State Bar of Michigan, in cooperation with the Supreme Court, crafted Principles of Professionalism to help guide both lawyers and judges;² the Bar’s Special Committee on Professionalism and Civility,³ chaired by Michael Leib, is busy working to educate and inform the public, attorneys, and students. The good news is that — at least according to a 2021 survey of Illinois attorneys — the focus on civility is working: the vast majority of lawyers (89%) indicated the attorneys they engage with are civil and professional, and instances of incivility declined markedly since 2014.⁴ Nevertheless, anecdotes of incivility⁵ abound while COVID innovations such as video depositions have spawned their own issues.⁶

That the Bar led the way for the Principles of Professionalism and is committed to ongoing engagement on civility in such a fulsome fashion is good timing. During the pandemic, many saw an increase in civility brought about by our common plight and necessary recognition that accommodations were required (which perhaps explains the Illinois survey results). But we are largely no longer cloistered in our homes, although many of us remain stuck in front of computer screens, many depositions are now live, and several courts (mostly outside of metro Detroit) have resumed in-person hearings. Business is returning to normal (the lack of uniformity amongst courts is a topic for another day.)

Let us all agree on the obvious: attorney incivility has been around for a long time, from the Roman Empire to the origin of the modern profession.⁷ It is arguably intrinsic, which makes it no less deleterious. Ninety years ago, Clarence Darrow wrote that “courtroom proceedings seem more like a prize-ring combat than a calm, dignified effort to find out the truth. All judges and lawyers know this. None seem to see any way to change it, except with added tyranny and greater cruelties. It is not easy to figure out the way to improve their method.”⁸ The modern focus upon civility traces back to the mid-1980s with the perceived rise of the “Rambo litigator.”⁹ The moniker for bad behavior changed, as did some of the perceived sources of incivility, but no one has suggested a sea change in the intervening 40 years.

What did the pandemic teach us about civility? COVID and the advent of the Zoom court has brought to the surface the value of the commons of the courthouse. With all due respect to those who advocate for changes based on data rather than anecdotes, “not everything that can be counted counts, and not everything that counts can be counted.”¹⁰ While we appear in court to handle a specific matter — and that is certainly of paramount concern to our client — the rest of what happens there also matters. Lawyers get to know one another. We take the temperature of the judge and adjust accordingly. We (sometimes) temper the vitriol of the pen when standing a few feet away from our ostensible adversary. Sometimes issues get resolved precisely due to the face-to-face environment. Sometimes we visit with the judge in chambers, getting to know one another and cutting through the formalities of being on the record. These interactions, manifestations of the culture of the law, make up the grease that keeps the formal wheels of justice turning. Do these benefits outweigh the efficiency and access to justice benefits of having some hearings via Zoom? Moderation is best in all things, but my point here focuses on professionalism.¹¹

Another impact of the Zoom court upon civility is the disappearance of the motion call in some of our largest courts. During COVID, many courts stopped having hearings altogether, instead exercising their authority under MCR 2.119(E)(3) to adjudicate motions without a hearing. This practice remains in some courts. It has led to sharper practices amongst counsel in at least two ways: lawyers know they can get away with more and the invidious nature of that, without an active judge, simply spawns additional friction.

Imagine a discovery dispute (discovery having long been identified as a major area of incivility). The plaintiff files a detailed motion accusing the defendant of not producing documents in various areas. The defendant responds, essentially saying, “Not so!” Based on those two briefs, a court would be hard-pressed to figure out who is telling the truth and craft a reasonable solution without micromanaging.

Traditionally, the court would suss out the truth of the matter at oral argument, reviewing the substance of the requests and responses and discerning who was the real problem in the process. An admonishment usually followed. The lesson here was that the court is paying attention, condemns gamesmanship, spots the troublemaker, and reinforces the norm as to how things should proceed in the rest of the case. If that lawyer is a problem in the future either as a serial filer or responder, the court can act accordingly. This is not a precise science, and judges get it wrong. But the condemnatory aspect of an actual motion hearing is critical. When the court cancels the hearing on any issue involving disparate factual claims, query how well it can adjudicate the substance, but the court also misses the opportunity to reinforce norms of practice.¹²

Notably, the Principles of Professionalism recognize the need for judges to set norms: judges “do not condone incivility by one lawyer to another or to another’s clients and we call such conduct to the attention of the offending lawyer on our own initiative and in appropriate ways.” Former State Bar of Michigan President Edward Pappas said it best during a 2020 public hearing on the principles: “Civility starts at the top and at the top of our profession are the judges. Judges set the tone for civility[.]”¹³

Many judges say they hate discovery disputes and particularly hate finger-pointing between counsel as to who did what to whom. I get it. Surely, some of that is unnecessary venting or attempted character assassination by counsel, but some of it is being raised precisely because without an active judge, bad behavior not only persists, but increases because lawyers think they can get away with it and then the other side raises the volume level, hoping the court will start paying attention and weigh in. Unless courts roll up their sleeves and engage, the nature of litigation means abuses will occur.¹⁴ Some judges think that if they take time to engage in these motions, they somehow actually promote more filings. I don’t agree, but what’s missing is the other part of the process — reinforcing norms. Along with deciding the substantive issues, it is critical that the court tells the side causing the problem (which, in some cases, is both) to knock it off. That goes a long way towards eliminating future motions, because lawyers know that if they get that second strike, there will be consequences.

An active judge also helps the other downsides of incivility. Incivility affects attorney well-being; that can only be made worse when there is no active judge willing to keep the train on the rails and arrest improper behavior. Incivility also tends to double up with gender and racial biases; promoting civility helps promote access to the profession and works against these noxious biases. Likewise, civility increases the legitimacy of our courts. Clients, informed by TV and Hollywood, perceive litigation as a combat sport, so they expect fighting, but when they feel the other side is getting away with something and the judge simply won’t address the matter, faith in the legal system is eroded.

COVID forced attorneys and courts to adapt. Some innovations will remain with us and improve our justice system if appropriately used. For me, the pandemic also reinforced the value of the courtroom and an engaged judge in improving professionalism and civility. The system works best when it works as one.