Civility Is an Innate Part of Our Biology
Though many of us lament the problem of incivility in the legal profession, there are some who easily concede it is a natural part of the adversarial nature of law. They may go even further, citing the competitive exclusion principle in evolutionary biology as an explanation for why such behaviour is actually a norm for society, generally.
Newer research by Martin A. Nowak of Harvard University may put those assumptions into question, and may even suggest that treating each other with civility and cooperating with one another is actually our “natural” instinct. For decades some theorists have explained this as a form of inclusive fitness, that organisms can best ensure the viability of their genetics by projecting altruism. For example, mothers in both the animal and human world are well known to engage in self-sacrificing behaviour to protect the viability of their offspring. But the cooperative instinct may prove even more sophisticated than just self-interest through genetic survival.
The December 2012 issue of Discover Magazine highlights some of Nowak’s work, and starts by describing the prisoner’s dilemma in game theory. By “defecting” against the other side, a player can maximize their own self-interest in the short-term. In any one-off iteration of the game, the first to betray the other side for their own interest will always “win.”
The Prisoner’s Dilemma (Image via Omar Ha-Redeye)
Many commentators suggest that incivility in legal practice is in no small part based on the perception of the litigator that the side which takes advantage of the other first will generally be more successful. Rules of professional conduct generally limit how this “defection” can take place. For example, the Model Code discourages sharp practice,
7.2-2 A lawyer must avoid sharp practice and must not take advantage of or act without fair warning upon slips, irregularities or mistakes on the part of other lawyers not going to the merits or involving the sacrifice of a client’s rights.
The game gets more complicated when repeat iterations are introduced. If one side “defects” against the other in the first round, the other side is likely to do the same in the subsequent round. This leads to what can be described as a Tit for Tat model using direct reciprocity. If the players definitively know the number of iterations of the game in total, they will usually still behave in a punitive and self-interested manner by calculating backwards from the last round.
The Tit for Tat model is used to explain why smaller communities generally tend to have less problems with incivility than the largest urban areas. The higher likelihood of encountering the same lawyer in another case in the immediate future curbs the level of incivility, out of a self-interest to reduce the likelihood of receiving the same kind of behaviour.
Nowak complicates this basic mathematical model by adding noise and error to better mimic what actually happens in nature, meaning that in some circumstances one side may cooperate even though the other side previously defected, and vice versa. He also added a reproductive element to the mathematical game, meaning that a win results in a greater number of units with the same characteristics as its parent unit.
Although the units initially defected on every iteration, they eventually gave way to a Tit for Tat model after about a hundred rounds. This process occurs because both sides eventually recognize the benefits of cooperation. But the complexity increases even further as the game progresses because a pattern of Generous Tit for Tat emerges, where one side which has been defected on still forgives the other side in hopes of inspiring the other side to reciprocally assist each other. Nowak describes this as the evolution of forgiveness. By not punishing the other side for past behaviour, you open up the possibility of greater cooperation and mutual benefit.
The communities of mathematical organisms developed in this model inevitably moved towards cooperation. However, there were some defectors who always remained, and when they existed in a largely cooperative community they would often cannibalize all of those around them. This may explain why even when civility and professionalism is developed in a community there will still be some individuals who behave in an uncivil manner due to the individual benefit they believe it confers upon them or their client.
But these defectors were also pushed out of cooperative communities eventually, once they had been identified and defected upon based on their past behaviour,
A society filled with happy cooperators becomes easy pickings for the selfish, who can tip things back toward dog-eat-dog. But that state, too, will have a few remaining cooperators who eventually tip things back to mass generosity.
This is described by Nowak as indirect reciprocity, which is a means of judging the reputation of a player and their likelihood to defect against others.
Reputation plays a significant role in regulating civility, both formally and informally. Lawyers who gain a reputation for being uncivil to their colleagues become readily identified in the bar. The manner in which these lawyers are engaged is also markedly different, and arguably affects their ability to achieve their clients’ goals. But clients rarely if ever have access to this information, and unfortunately cannot normally use this reputation information in selecting their lawyer.
Nowak also identified several other patterns in his mathematical model. A spacial selection model exists, where units are more likely to cooperate with units existing in closer proximity to them. This may explain why incivility appears to be a bigger issue in written correspondences and over the Internet, because the lack of facial cues and social restrictions allow for greater escalation of conflict. Psychologists call this phenomenon the online disinhibition effect, and hypothesize that it explains the reason for online flaming.
A broader version of the spacial proximity model identified by Nowak is multilevel selection, based on structured organizations which encourage cooperation between their members. Although the bar is itself supposed to act as the organization within which members will behave in a civil manner to each other, this is apparently not sufficient enough. Most of the other legal associations have made concerted efforts to promote civility, and for those organizations where membership is voluntary, this may actually be a more effective manner to tackle the problem. Anecdotal observations on my part appear to confirm that incivility is generally a greater concern or issue with those lawyers who are not actively involved in the bar or in legal organizations. Uncivil behaviour would quickly tarnish the reputation of those members, which would affect their relationship within the organizations.
Nowak does identify a familiar kin selection in his model, where units are more likely to cooperate with other units which are directly related. But the inclusive fitness theory is apparently far more complex than simple genetic survival. Spacial and multilevel selection helps explain many of the self-sacrificial behaviours we observe in society and around us today, including national interests, patriotic behaviour, and working for equity and justice issues. The paradigm shift of how we view civility and cooperation has broader consequences for how we value other institutions in society, including the legal system. The Discovery Magazine article concludes,
Even though the fight over inclusive fitness has sucked up a lot of the air recently, Nowak’s broader ideas seem to be taking hold. “What Martin is saying is that cooperation is to be expected,” says David Krakauer, an evolutionary theorist at the University of Wisconsin at Madison. “We think of prosocial behavior as requiring institutions that reward and direct our behavior. Churches, legal structures, and bureaucracies are all there to temper the so-called innate proclivities of human beings. Martin’s big point is that that’s not the complete picture. Cooperation doesn’t require a magistrate’s court.”
It is an innate part of the biology that helped us evolve. Cooperation lies at the core of who we are.
Social justice as a professional goal for the legal profession need not be seen as simply a public relations tactic, or a marketing gimmick to raise a lawyer’s profile in society. Cooperation, civility and pro bono work is a natural state of organisms, and by extension, of lawyers. It still requires the rest of us to identify and address those defectors amongst us to push our profession back to mass generosity as well.
Omar this is very interesting, and I don’t think unsurprising as an observation about how people interact with each other. I think, however, it is crucial to separate the arguments about the virtues, probability or desirability of civility from questions about formal law society regulation of civility. Civility is a good thing. I don’t think there is any inherent reason why a lawyer has to be uncivil to succeed. The best litigator I ever knew, CD O’Brien, now of the ABCA, was never uncivil, even when dealing with the most obstreperous opposing counsel.
However, regulation of civility has some downside effects that are unaddressed by any of the foregoing, or by anything you say here. I’ve talked about those at length in a recent paper in the Dal LJ (see an earlier version here) but let me allude to a few here.
First, the best thing about civility regulation is it sometimes identifies practitioners with chaotic practices where lots of things are going on. That’s not a virtue of civility regulation though, but just a side effect it seems to have. There are likely better ways to address those underlying issues than the somewhat blunt instrument of lawyer regulation.
Second, civility regulation is often used by courts or regulators when there is real bad conduct going on, but instead of talking about that bad conduct, they just talk about the incivility. Dore was a classic example of that. His letter was super rude, but the more significant thing about it was that it was an ex parte letter to a judge in an ongoing proceeding, and it personalized that proceeding. It would have been just as bad (even worse) had it been warm praise of the judge’s virtues, as opposed to what it was, an uncivil indictment of his vices.
Third, civility regulation can be used to endorse a very narrow conception of what good practice looks like and a better class of insult. As long as you couch your abuse in nice language you’ll be OK. Amy Salyzyn has just written a terrific paper on this, here.
Finally, and most importantly, in some civility cases, such as the Laarakker case out of British Columbia, the law societies targeted lawyers who, quite frankly, were acting in accordance with justice and the finest traditions of the legal profession. Instead of looking at the substance of what was being done, the Law Society only saw the manner of doing it. And in Laarakker’s case the LSBC, along with the LSUC who refused to discipline the lawyer who was properly the target of Laarakker’s ire, took away the informal sanction by Laarakker of a badly behaving lawyer. Laarakker was disciplined. The wicked lawyer whose wickedness he called out – nothing.
Anyway, as I said, I appreciate the points you made here. I think in an ideal world lawyers would avoid incivility, and would do so by focusing on the merits of the case not on the merits of the persons involved. But I think assuming the merits of regulation from these points is a mistake.
Alice
Alice,
These are all great resources, but I deliberately avoided the question of regulation for a reason.
The cooperation instinct, and pushing our profession back to mass generosity, need not occur through the law society. The vast majority of incivility cannot be regulated properly, and never will be, because it occurs in far more subtle ways that would make regulation impractical.
Instead it’s a recognition that we all provide referrals and recommendations to our colleagues, and often assist them in many other ways. There are a wide variety of soft sanctions which can be used to freeze out uncivil lawyers by ensuring their behaviour is not rewarded.
Most importantly it’s the threat of these soft sanctions which should encourage defectors to realize a Tit for Tat response may be in play, which itself should change their calculus of self-interest to prefer cooperation over defection.
Ah, well said Omar. I agree with that entirely. I think it’s important though to make the distinction because otherwise comments like these are taken to endorse the regulatory approach (as if something being good also makes regulation to ensure the thing happens good, which any lawyer should know is false).
I’m rather on Alice Woolley’s side on this one: Law Societies often focus on what fits within a “frame” of what they find acceptable rather than seeking to sanction unacceptable behaviour. Put metaphorically, they go after the person who swears first, rather than the person who drove somebody to swearing. The issue thus becomes not “which of the two of these people did wrong?” but “who acted like a gentleman?”
Worse, small firm and sole practitioners often find that Law Societies find it convenient to sanction them rather than “respectable” firms. Frankly, the comments that I have heard from that portion of the bar and the comments that I hear from abused male spouses have the same — very logical — reasoning: “I am not going to complain to Authority because if Authority shows up I know that I’m the one going to end up in trouble”.
The other issues are the elephants in the room: the role of the bench and basic human reactions to the resulting incentives and disincentives. First, there is little consideration from the bench rather on their role in this. When the LSUC launched its civility initiative some years back I attended the local bar conference on the subject, with members of the bench and bar present to examine the issue. At no point did any judge or any lawyer address the role and responsibility of the judges in maintaining civility which was, frankly, bizarre. Would we discuss crime reduction without examining the role of the police?
Further, in addressing what is seen as “civil” there seems to be some confusion on the bench between “civil” and “superficially polite”. I have seen some very boring lawyers get away with some pretty gross misstatements, but it is counsel who leaps to their feet to call out the misstatement who is seen as engaging in unacceptable behaviour. I have, to my astonishment, seen judges chide counsel for interrupting rather than address the issue that the counsel with the floor was providing a flat misstatement of fact to the court. If “civil” means “politeness, even when lying” and “uncivil” means “not accepting fibbing in court” then the problem is obviously not the “uncivil” lawyer it is the definition itself.
This is what brings us to the other elephant: incentives and disincentives. I can give you two examples from my own past, with jurisdictions and names omitted.
1. I had one lawyer outright lie to a judge in chambers on a key point at issue, a lie for which I was ready with materials in response. The judge delicately pushed them back to me with two fingers, saying, “I don’t think I need to see that today”, leaving the unethical lawyer grinning at me.
2. In another case I had to attend a court appearance out of town to force counsel to provide a motion date. When I tried to address this in costs the judge told me that the only costs issue he would hear was costs payable by me personally. (Yes, you read that correctly: the only costs argument he would entertain was to pay the uncivil lawyer who forced a wholly unnecessary motion, and sanction the one whose client was out a thousand dollars because of that incivility.)
When lawyers see sharp practice go unsanctioned (and often rewarded) then they legitimately wonder whether or not “civil” means “sucker”. Human nature 101 is to follow what produces rewards and avoid what produces sanction. If the bench wants the bar to be civil then perhaps the bench should address that problem.