Didactic Civility

Long have we sought to convince our fellow lawyers to act with civility. The exercise is futile and lacks the universality we seek. Consider the oft-invoked principle of reciprocity, supposedly a ground upon which one ought to be civil. “Treat others as you would treat yourself”, so goes the golden rule. It is wonderful when uttered by a person at peace with himself, and it is folly otherwise. Have we not all heard of the lawyer who hated himself, who drank himself to oblivion every night, who never saw nor cared for his family, who indulged upon his basest desires, letting his vices overtake his virtues? If such a man treated others as he treated himself, the result would be incivility writ large, litigation conducted by wild whimsy, aggression closer to violence than to words. So falls reciprocity, a principle that assumes, too optimistically, a reasonableness beyond reality.

The great French philosopher Emmanuel Levinas sought to ground our relationships in le visage, that is, the face, which we are confronted with when we are in the presence of each other. So, the argument goes, that an ethical encounter is unavoidable, and even a necessary condition of human being, when we look into another person’s face. A more beautiful concept does not exist! To think that we would all look into each other’s eyes and feel deep obligation. If this rang true, the argument for in-person hearings would be irrefutable (yet the virtual hearing shows an even bigger face, if my large monitor has anything to say about it), for the physical presence of another would draw out civility like a straw milkshake. But the power of the face is easily refuted. I once knew a lawyer who laughed in the face of a witness, then stared vacantly as they recounted suffering. Such pathology, or psychopathy, does not escape lawyers. And still others ignore the face and its expressions. Indeed, many a lawyer exists for which the face is mere background, devoid of meaning and obligation.

Failing the search for high values, still others persuade us to be civil because it will lead to success, that is, that the consequences will be favourable. “Your reputation is all you have!”, so the saying goes. To lack civility is to lack reputation, and to lack reputation is to lack clients and billable hours and success. Yet who among us cannot name a lawyer known for fearless advocacy and incivility, all at the same time? And, depending on the winds of society, the ad hominem reigns supreme, as it does now, growing influentially south of the border and around the world. Neither is this a unique time. Cicero, that grand orator, portrayed his opponents without restraint, woe be to Clodia, attacked as an adulterer, an incester, a mariticide, a slut. And he, and many others, met with unparalleled success, not only in spite of, but more fearfully because of, their incivility. So falls the appeal to self-preservation and success.

If civility is a plea, its reasons are didactic. Perhaps you will be convinced by one or the other argument, if you are, by turns, a person at peace with oneself; an empath; or less prone to risk and fearless advocacy. And so too such arguments fail when they do not appeal to you and your unique make-up.

Civility, then, is best not taken as a plea, not something to appeal to values and principles and consequences. Perhaps it is something far less substantial, and far more ethereal, that is, merely a hope, and a dream, that we can be more than self-interested, more than our base humanity, more than our pathologies and our suffering identities. Perhaps this could be persuasive, and not just didactic: we ought to be civil because that is our shared dream, to practice, and live, in civil society.