Civility in Practice

By Paul E. Pfeifer

This is one of the weekly newspaper columns that I write and make available to media outlets around the state. This particular column concerns the need for greater civility in the practice of law.

CIVILITY IN PRACTICE

Last week, at a continuing legal education class I attended, the speaker said he was distraught that lawyers are the butt of so many legal jokes. I don't mind the jokes too much myself. Keeping a sense of humor is important no matter what you do. But a lot of the jokes are funny because they're at least partially true, and that's what probably hurts the most.

Part of the problem is that the legal system is based on an adversarial relationship between the two parties involved in a lawsuit. The incessant sparring creates an image of people who will stop at nothing to win the case.

It has become common tactic to bury the other side in a mountain of paperwork that drives up the cost of litigation and slows it to a snail's pace. Both sides do it, and justify the action by saying if they don't, they might miss something important. It's the legal equivalent to the excessive tests that the medical profession conducts on patients to cover their malpractice behinds.

In domestic cases, such as divorce and child custody, lawyers sometimes make matters worse. Husband and wife end up fighting with each other more than ever because they have both listened to the advice of their lawyers who say -- "Let's go after them."

Sometimes, the best work a lawyer can do for his client is to say: "Yes, you may have a case, but it is difficult to prove, and in the end, you won't be any better off. It's just the unfairness of life." There are occasions when a client needs to be told they are legally or morally wrong. Unfortunately, not enough lawyers do that.

It's not just courtroom lawyers who are at fault -- they are just the most visible. There are plenty of attorneys who put together a thirty page will when a two page will would suit their client's needs just as well, if not better. There are lawyers who write up contracts that visit a great unfairness on the other side just to exploit an economic advantage for their client. But a grossly unfair contract, in the long run, will benefit neither side.

My colleagues on the Supreme Court and I discuss this issue frequently. We agree lawyers ought to be the leaders in civility; instead, we see a deterioration of common decency in the profession.

Recently, I attended a milestone birthday party for a well-respected attorney. There were partners from other law firms there, as well as clients. One lawyer lamented that these parties, once commonplace, seldom happen anymore because everyone is worried that rival firms will steal clients.

There's an old saying that good lawyering is about being able to disagree vigorously without being disagreeable. Practicing law should not be about name calling, obfuscating the truth or getting one up on the other guy. We all need to be ever mindful that the task at hand is to serve justice in incremental ways in each of our lives; to bring an end to a problem, a resolution to a dispute; to help people move their lives forward in a positive way.

Years ago, during my first term as chairman of the Ohio Senate Judiciary Committee, I served with a senator named Ben Skall. During a debate on the death penalty, the committee was hearing, testimony from my former constitutional law professor. Ben interrupted him to ask, "Professor, what is justice?" The professor, never at a loss for words, was stopped dead in his tracks.

Ben wasn't an attorney, but his question is one all attorneys should ask themselves. What is justice? The answer better be something more than just a seven-letter word for profit.

The OJ Simpson trial put the warts of the legal profession under a magnifying glass. I'd like to say there's nowhere to go but up after that, but there's no guarantee that's the case.

Our image has become terribly tarnished, and that is truly a shame, because the profession has such a proud history. From the advent of English common law which replaced the notion that "might makes right," to the strides in civil rights, such as the brave fight of Rosa Parks, or Brown v. Board of Education, lawyers have been involved. Many of the great achievements around the world that have brought some degree of peace to human turmoil have been facilitated by lawyers.

Now we find ourselves at a juncture in our history where there is need for improvement, but how best to attain that goal? I don't think we can achieve it with more rules to govern our conduct. We all have a hard enough time living up to the original ten that Moses brought down the mountain. We can't legislate morality.

So it comes to this: The legal profession represents an enormous talent pool. Some of the best and brightest choose to be lawyers, hopefully because they believe that it is a great way to bring order to a world of chaos, and not just because they think they couldn't cut medical or because they see the law as an easy way to get rich without getting their hands dirty. Everyone has a moral compass, we all just need to check it more often so we don't lose our way.

I don't know if these problems are limited to our profession. The same kind of issues may plague architects and accountants. But that's no excuse. It seems to me the legal profession should be achieving more for people. We ought to be noted for how we help others solve problems in civil ways. If we truly achieve that, we won't be the butt of humor anymore.