Civility in Legal Education
Practical skills training is currently a popular topic in legal education discourse. Beyond whether and how to increase “practice-ready” skills training in Canadian law schools, much of the discussion is focused on what practical skills should be included as part of a law student’s education–advocacy, legal drafting, legal writing, negotiation and practice management being some of the most frequent candidates. An essential lawyerly skill which is seldom explicitly mentioned in this conversation and which is in dire need of more attention in any discussion of legal education is that of civility.
Typical dictionary definitions of civility reference polite or courteous behaviour—in short, being nice. In the context of legal training and practice, however, civility serves a particular and essential purpose and therefore has a deeper meaning.
The law—and consequently all areas of legal practice–is fundamentally about conflict. At their core, substantive legal principles and procedural rules are all designed either to prevent future conflicts or to resolve existing ones. And, at their core, these conflicts derive from the existence of divergent opinions on any number of factual and legal issues—for example, how particular events transpired or ought to transpire, who should bear responsibility for an event, the value of a loss, the appropriate punishment for an offence, and what outcome is most “just” in a particular circumstance. Whatever the point of divergence, the role of a lawyer is to navigate a path through the conflict. So, for lawyers, civility means being polite and courteous in the specific context of managing or reconciling opposing views—in other words, in an adversarial or oppositional context.
In this setting, civility is not just about being courteous and polite for their own sake. Civility in this context must encompass a behavioural skillset that calms rather than inflames the underlying discord so that the conflict itself can be addressed without unnecessary distraction or delay. Elements of that skillset include demonstrating respect for others by patiently and genuinely listen to opposing views; by challenging opposing views without resorting to ad hominem arguments; and by communicating opinions using constructive language and a calm tone.
All of this, of course, may seem obvious and elementary (which may explain why civility is paid so little attention in conversations about improving legal education). Yet, while we commonly expect civility from legal professionals, examples of incivility in the legal community abound. Every practising lawyer and probably every articling student can offer a ready anecdote of an opposing lawyer being insolent in the handling of a legal file. A quick perusal of reported judgments turns up a ready collection of examples of counsel, and sometimes even judges, being sarcastic and discourteous. And, in the ever-expanding world of social media, where conflicting views of justice and fairness which are on broad display, lawyers are far from immune from breaching even the most basic parameters of respectful discourse. All of this is unproductive and unbecoming of a profession which is devoted to the resolution of conflict and the pursuit of justice.
Improving civility in legal education requires nothing but focus. Curriculum change, budget increases, new facilities, and additional faculty members are not needed. Civility is easily incorporated into both procedural and substantive classes. All we need is a renewed and deliberate intention to put it there.
I agree that civility is something that should be included in legal education.
I have, however, been mostly impressed by the approach fellow counsel have taken in my now 15 years of practice. Most come at representation the way I do — a collective problem solving exercise — until there is a reason to take a different approach.
The exceptions, sadly, have mostly been paralegals licensed by the LSO. They have come out, both arms swinging, without any provocation. My theory? They don’t get to see the practice in action through an articling period so they model themselves on the very unrealistic lawyers we see on TV and in the movies. I typically try to up my civility game in response to their aggression and occasionally, if I think it will be effective, even have a little chat with them about catching more flies with honey.
Very well said! My experience is that, among the goals of legal education, inculcating civility is one which is most difficult to pursue in the current online format. A few students seem to feel liberated online, far more than they would be in person, to engage in uncivil (and sometimes racist) attacks.
Also I think that many — if not most — law students are finding it hard this year to develop a civil, supportive community with their peers. Watching profs is fine, but I think that the goal Dean Billingsley identifies — learning how to express oneself civilly despite conflict — is best learned by watching other students do it. Seminar classes, moots, study groups and clubs were a venue for this in previous years. At least at my law school, I don’t think we have found a good way to replicate that online so far.
Here are some “civility points” for a teaching outline:
1. Teach and enforce each jurisdiction’s Rules/Code of Professional conduct as to civility and treatment of witnesses.
2. Teach the theory as to the position and purpose of counsel in court: (1) proceedings are dignified because appearances matter; they help convey the need for, and substance of an intelligent, disciplined process, which increases the probability of justice being done in fact, as well as in law. People may not understand what is said in court, but they understand appearances. (2) The purpose of counsel is to help the judge (and jury, if there is one) reach the right decision; it is not to get one’s client the result that the client wants by any means that works. Being uncivil to anyone in court works against helping the judge (and the jury). And, (3) particularly important, being disrespectful to a witness in a jury trial is about as faulty a tactic as one can imagine. The jury will surely make counsel and client “pay for it.”
3. Create greater awareness of the fact that if one gets a reputation for being an uncivil, rude etc., performer, one greatly reduces one’s probability of higher appointment, such as becoming a judge, a member of a tribunal, a full professor, writing a report for some agency, or conducting a government-sponsored inquiry. Always remember, that you are creating the references that will be checked when you want to “move up” in the profession, the justice system, etc.
4. But also teach how to counteract such bad performances by lawyers. For example, because very few witnesses have had such experiences so as to be calm, collected witnesses, it is very easy to upset (unnerve) a witness by way of cross-examining counsel’s rude, aggressive, deprecating and demeaning behavior. Such strategy is meant to make the witness appear to be uncertain as to the accuracy and truthfulness of what the witness is saying and testifying-to. So, practice students in literally standing-up to object, so as to protect their own witnesses. If it is done a second time, suggest that opposing counsel be cautioned by the Court. Always guard against such “dirty tricks” lawyers. They can easily destroy a key witness if left free to do it. Opposing counsel merely has to establish “a reasonable doubt,” (in criminal proceedings), or satisfy “a balance of probabilities” (in civil proceedings), about a key witness’s credibility.
5. Transcripts: emphasize the consequences of the fact that court and tribunal proceedings are 3-dimensional performances, but transcripts of such proceedings are merely 2-dimensional representations of such performances. Court transcripts do not record body language, facial expressions, tone of voice, the use of an aggressively accusing pointed finger, etc., during cross-examination, unless someone puts into words the use of such tactics so that they are recorded in the transcript, and are there for the Justices of the Court of Appeal to read. And, transcripts have other important uses, particularly for other formal proceedings. Always think of the transcript that is being created “as we speak,” so to speak.
6. Read, Osgoode Hall Law School Professor Allan C. Hutchinson’s book, “Fighting Fair-Legal Ethics for an Adversarial Age,” (Cambridge University Press, 2015; 125 pages + Index). And,
7. Assign the points in this Comment to students with which they should write a well-researched paper.