The Other Side of Civility

I recently read a piece on “civility” by our new State Bar President, Dennis Barnes. Although I agree with President Barnes, please allow me to present a necessary counterpoint. “Civility” (aka social etiquette) has its plusses and minuses. Civility is a two sided coin. On the plus side, civility is (as Shakespeare says about “mercy”) “twice blest.” It saves some wear and tear on the jangled nerves of humanity and, in the process, enhances communication and the exchange of ideas. That’s good. But, on the negative side, civility is “twice cursed.” It silences those not skilled in the “language of diplomacy” and social etiquette and, in doing so, leaves the cause of the inarticulate on the cutting room floor. That’s bad.

Bottom line. Not everyone has the command of language and the diplomacy skills necessary to get their point across in a “civil” manner (including most clients and many lawyers in the first five to ten years of their careers). As I learned during my 47 years as a Trial Lawyer, the American Courtroom presents a competition of ideas and ideals in a fast paced “war of words” rhythm, where the inarticulate come to the battle unarmed. Yet, those very same inarticulate voices (lawyers and clients alike), overwhelmed by the delay, the cost and the “gamesmanship” of the legal system (see Judge O’Connell’s opinion in Shawl v Spence Bros, 2008 WL 3851978. Mich App), and frustrated to the max and angry and depressed as they are, must not be silenced under the guise of “civility,” social etiquette or any other “let’s all get along” theory. Those frustrated voices, untrained (or not yet fully trained) in the art of civility, diplomacy and social etiquette, must be heard in the halls of Justice… if there is to be any Justice for All. It is our legal system that must make allowance for those voices, untrained in the art of diplomacy, not the other way around.

America’s Founding Fathers were a revolutionary and irreverent group who created the finest “balance” between governmental control and human rights the world has ever seen. If we had an audio tape of the verbal sparing and arm wrestling of the Founding Father’s debates (not their composed papers), I am sure we would hear a robust, straight forward, transparent and full throated exchange of ideas and ideals, trumping civility, social etiquette and hurt feelings. The sequence had to have been a robust, full throated debate first, civility and social etiquette second, with hurt feelings a distant third. The Founders were self assured, confident, strong men, and they had no problem in the giving and in the taking of criticism for their ideas and ideals on government control vs human rights. These strong men didn’t pull their punches. Ditto for those who pushed the American system of Justice toward an “adversarial” process that pits one side against (“versus”) the other, that supports “saying what needs to be said” and that demands a full throated cross examination through “confrontation” to get to the harsh truth of competing realities. Civility and social etiquette must never be used to cut off the voices that Lady Justice needs to hear, if there is to be Justice fo All.

My plea… work toward civility to save wear and tear on the already jangled nerves of humanity. But, you young lawyers out there, don’t be intimidated by civility as you must get your client’s message across, and also find your own voice, without being knocked off your game by looking over your shoulder, preoccupied with civility and social etiquette. And, you Judges, Referees, Hearing Examiners, Friend of the Court employees, Court Clerks, Court staff and all you who play a role in the system of Justice for All, always (repeat for emphasis, always) make allowance for a robust and intense debate and confrontation that the cause of Justice for All demands, and the needs of the clients and lawyers require.

Give the inarticulate who are truly stymied by the challenge of civility and social etiquette a break. They also are God’s children. Facilitate civility and social etiquette where possible, but don’t promote them as the end game. They are not the end game, but merely a means to the end goal of Justice for All, which can only be achieved through robust, adversarial presentations and confrontations that are the essential ingredient in the search for truth. Maybe even consult with those who understood this proposition best, former Judges, James P. Sheehy (52nd. District Court), Connie Marie Kelly, Richard Hathaway, Tim Kenny and Robert J. Colombo Jr. (Wayne County Circuit Court), Milton Mack (Wayne County Probate), Peter Deegan (St. Clair County Circuit Court), Stan Latreille (Livingston County  Circuit Court) and Sean Cox (Federal District Court), among others.