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.”
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.