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.