Civility and "Generalized Reciprocity"
By Hon. John Simonett
The following is a transcription of remarks Justice Simonett delivered in the fall of 2002 at a dinner meeting of the John E. Simonett Inn of Court in St. Cloud, Minnesota. Justice Simonett practiced law in nearby Little Falls, Minnesota for 29 years. Ed.
Good evening. It's good to be back home. I know the subject of civility has been gone over many, many times and that you would just as soon not hear another speech on the subject but, even so, I thought we might talk a little bit this evening about civility and its relationship to the principle of generalized reciprocity.
In 1951, when I began the practice of law, I was curious about what lawyers would be like, how they would act, especially towards each other. I was the first in the family and relations to be a lawyer. My family, as a matter of policy, steered clear of lawyers and it was only on rare occasions that I would catch a glimpse of one from afar. How lawyers behaved in their natural habitat, I did not know.
In the county-seat town where I went to practice, there were eight lawyers, all sole practitioners. I joined the office of one of them, making our firm the biggest in town. All the lawyers welcomed me and their welcomes were genuine, but I couldn't help thinking we were destined to be adversaries. I remember drafting my first legal document, a lease, and thinking the time might come when another lawyer in town would try to break it. The first case I was assigned to work on was a lawsuit in which our office alleged a critical provision in a will drafted by the lawyer across the street was in violation of the probate code, contrary to public policy, and invalid. And after I had second-chaired several trials, I noticed how a trial was a battle of wits, each lawyer trying to out-fox the other. And to top it off, we were all competing for business.
And yet, after a few years of meeting with lawyers in their offices, dealing with them in the courthouse hallway or over the phone or in correspondence, two things struck me. First of all was the camaraderie. The lawyers I knew enjoyed each other's company and truly "got along"; they were willing to accommodate a colleague or come to another's aid. The second thing that struck me was their professionalism. The law I had learned in law school, I soon realized, was not enough and that it needed to be matched up with the relevant facts of a client's case; and I couldn't help but notice how careful and respectful lawyers were with facts. In short, you could take lawyers at their word.
Lawyers, too, looked out for each other. When I joined our county bar association, the members told me about a member who had practiced in town some years earlier but who had few redeeming qualities, was unacquainted with civility, and had to be watched. And yet when he died, the entire bar turned out for his funeral and sat in a body in the front pew at church and went together to the cemetery for the burial. As the secretary-treasurer of the bar association explained to me, "We wanted to make sure he was really gone."
Yet how could it be that in such a disputatious and argumentative profession, there could be so much camaraderie and mutual respect? Perhaps, it occurred to me, the answer was that while parties take their claims personally, lawyers understand that the law itself is impersonal, and they are on the side of the law.
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And so the years went by. In 1951, there were 2,300 lawyers in the state bar association. Today, there are 15,000. In 1951, there were four judges in the 7th Judicial District, which stretches from St. Cloud to Moorhead. Today there are 25 judges in the district.
It was about the 1980s that one first began to hear talk about civility -- or rather, the lack of it. Up until then, professional good manners were taken for granted. The dictionary says "to civilize" means "to bring out of a condition of savagery and barbarism." If so, we must be on our guard not to regress. Actually, civility is simply being courteous and polite. It is not to be confused with ethics, which deals with the morally right thing to do, while civility deals with the socially proper thing to do. Civility has to do with manners, which, as the old saying goes, are learned at one's mother's knee and other low joints, whereas etiquette deals with the forms and conventions by which we show courtesy and respect.
Etiquette changes over the years. In the 1950s, Harold Nicholson, the British writer and diplomat, wrote a book entitled Good Behavior, about manners in various countries at various times. Nicholson pointed out that in his father's day in English society, people did not address each other by their first names. His father used first names only for close relatives and people he had known intimately for at least 30 years. In his youth, Nicholson always addressed schoolmates by their family names. He says he would have blushed to have had a classmate call him by his first name because that would have been an invasion of privacy.1 Nowadays, the phone rings about dinner time and a strange person says, "Is that you, John?" I admit it. "How are you today, John?" One wonders how Harold Nicholson, who liked Americans but thought they were too "folksy," would have handled a telemarketer.
Some say there is a growing coarseness in society, and that this change is being reflected in the practice of law. I must say I find the bar as likeable as ever, but my time on the bench has, I admit, insulated me from the rigors of law practice. Still, it seems there is less time for camaraderie. And one hears tales of insolence, of reports of surliness, of unreasonable rejections of reasonable requests for extensions, or phone calls never answered. There is a ratcheting up of rhetoric. We prepare for trial in a "war room" to go forth as "warriors" to employ a scorched earth policy on the enemy. Just like in the movies.
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There is a temptation when bemoaning the rise in incivility to overstate the case, so it is important to keep the matter in perspective. Harold Nicholson, the epitome of the English gentleman, had this to say in his book:
Unconscious rudeness must always be forgiven, since it may proceed from shyness, lack of practice of the social graces, absent-mindedness, impatience, astigmatism, a stammer, hunger, acute illness, love, a secret sorrow, deafness or just fear.2
Unconscious rudeness often crops up in correspondence. Some correspondents think that beginning a sentence with "Please" excuses any language that follows, no matter how peremptory or mean spirited. Once upon a time, a young lawyer showed his senior partner the draft of a letter he was sending to opposing counsel. The partner said, "Why did you call him a jerk?" "I didn't!" "Well," said the partner, "You might just as well have."
Interestingly, Nicholson goes on to say, "Few things are more agreeable than the spectacle of a man who loses his temper . . . We should be grateful to such people for providing us with moments of often unsullied delight." Brief writing is a wonderful opportunity to relieve frustrations by taking pot shots at opposing counsel. Such remarks are rarely taken seriously, are occasionally entertaining, and are always ignored by judges who find them annoying and distracting.
Invective also is an attractive form of verbal activity, nor do I really mind when a person gives way to a temporary but quite healthy desire to insult . . . among intelligent people such outbursts leave no reasonable rancor behind and are quickly forgotten.3
The first brief I wrote entirely on my own was in answer to a plaintiff's brief. My brief was cogent, polished and respectfully pointed out the fallacies in plaintiff's argument. Still, I worried how opposing counsel, an experienced lawyer, much my senior with a formidable reputation, would respond. The reply brief, due in five days, came back in three. It consisted of one sentence: "Dear Judge, I shall let defendant's brief die of self-inflicted wounds." That letter is one of the prized memories of my years of practice and that lawyer and I became good friends.4
What is unforgivable and is to be condemned, says Nicholson, is the calculating form of bad manners. He goes on to say, however:
Tactlessness is generally no more, as Theophrestus wrote, than "a painful failure in the sense of occasion." But intended tactlessness is worse than insult or irony, being the slyest of all forms of social cruelty.5
There is nothing funny or excusable about the lawyer who deliberately hangs up during a telephone conversation or the lawyer who blandly denies what he or she undeniably has just said.
Surprisingly (or perhaps not so surprisingly), incivility may show up in court. Lawyers who know better choose to sit rather than stand in addressing the court. Some roll their eyes at a judge's adverse ruling. Some, believing in the persuasiveness of petulance, tell the court that "no other judge would ever do that" or having lost the case, will send a letter to the judge denouncing the judge's decision as ridiculous.
One of the best rules for maintaining civil discourse in the courtroom, I think, is borrowed from Roberts' Rules of Order, which states speakers must address their remarks to the Chair, not to another member of the body. This sidetracks hurtful remarks. For the same reason, a judge will insist any slings and arrows of outrageous discourse be addressed not to other counsel but to the court, where the judge, by opposing, ends them.
Hoping to give the Rules of Professional Conduct some starch, Minnesota recently adopted a set of Professional Aspirations. How may of you here this evening, may I ask, have read these Aspirations which are in your desk book on Minnesota Rules? Just raise your hands. [No hands were raised in the audience but several persons who had been dozing came momentarily alert.] Well, let me quote one of the Aspirations:
We will affirm among parties and other lawyers that civility and courtesy are expected and are not a sign of weakness.
You will notice the Aspiration ends somewhat plaintively and exposes a Catch 22. Since being courteous in the legal arena may be misconstrued by the uncivil lawyer as timidity or subserviency, incivility must be met with incivility. One must fight fire with fire. But surely this cannot be.
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What is needed is some way of convincing lawyers that civility is in their best interests. The answer may lie with the principle of generalized reciprocity. Let me explain.
Several years ago Robert D. Putnam, a Harvard sociologist, wrote a book entitled Bowling Alone.6 It is his thesis that when people engage in civil and community activities, these social networks create a "social capital" that has value and affects productivity in society. Under the pressures of modern day living, however, Putnam believes Americans are depleting their social capital, that they are dropping out of clubs, ptas, church groups, neighborhood associations, and, instead, are "bowling alone."
Putnam says social capital depends on the principle of generalized reciprocity, which he explains this way:
I'll do this for you now without expecting anything immediately in return and perhaps without even knowing you, confident that down the road you or someone else will return the favor.7
You hold the door open for a late arrival coming up behind you. You make room for another car to move into your lane of bumper-to-bumper traffic. You rake the leaves on your lawn before they blow over to the neighbor's yard. Putnam quotes Yogi Berra: "If you don't go to somebody's funeral, they won't come to yours."
Generalized reciprocity creates social capital. As Putnam explains, the exchange of these favors reduces the transactional costs of daily living;8 there is less background stress, less worry about locking the door or receiving the correct change -- or, for lawyers, less stress in scheduling depositions. In short, the principle of generalized reciprocity builds trust and honesty, and a trustworthy society is measurably more efficient than a distrustful society. The old maxims learned at one's mother's knee -- "honesty is the best policy," the Golden Rule -- still hold true.
There has been a tremendous increase in the number of lawyers in the last 30 years, an increase which cannot be attributed entirely to general population growth. Putnam believes this proliferation of lawyers is because we live in a less trustful society and more lawyers are needed to practice "preventative lawyering"; in today's world, if you reach an understanding with somebody, it's advisable "to get it in writing." There is an irony here, says Putnam. As people in society trust each other less, so, too, do lawyers trust each other less and cooperate less.9
It is so much better when there is trust. When I was at my cabin this summer, I stopped at the general store where everybody knows everybody and rented a vcr movie. When I asked Marlys when the movie was due back, she said, "Whenever."
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There is, I think, merit to the argument that courteous behavior enhances productivity and confers an economic benefit. Civility lubricates the legal system, reduces friction and stiffness in the joints, thereby reducing the transactional costs of practicing law. Countless hours can be saved, for example, in discovery proceedings.
It is a mistake to think of civility as doing what guys who finish last do. It is more than niceness. It is being a tough bargainer, a shrewd negotiator, and an aggressive litigator, while having good manners and seeing nothing inconsistent between the two. Civility, in short, makes for winning advocacy.
A clue to the significance of civility in our profession may be found in something Chief Justice Knutson once said. In 1973, the Minnesota Supreme Court held, in Sharood v. Hatfield,10 that the power to regulate lawyers lies with the judicial branch of government, not the legislative. Consequently, wrote the chief justice, the judicial branch requires the assistance of "an able, vigorous and honorable bar."
Well, there you have it. Civility is important if we are to have a bar that is "able, vigorous and honorable."
2. Id., at 277.
4. The lawyer I refer to is Don Ryan of Brainerd, whose natural habitat was the courtroom. Mr. Ryan died on December 1, 2002, at the age of 100.
5. Good Behavior, supra, at 278.
6. Robert D. Putnam, Bowling Alone: The Collapse and Revival of American Community. New York: Simon & Schuster, 2000. I am indebted to Richard A Saliterman of the Minneapolis bar for bringing my attention to Putnam's book. Mr. Saliterman and Prof. Edward A. Adams of the University of Minnesota Law School coauthored a book review of Bowling Alone entitled "The Trusteeship of Legal Rulemaking," which is in 30 Hofstra Law Review 483 (Winter 2000).
7. Bowling Alone, at 134.
8. Id., at 135.
9. Id., at 147, where the author refers to a study by two law professors, R.J. Gilson and Robert Mnookin, that found the number of one-time only encounters among lawyers is increasing and that social networks among lawyers have declined.
10. Sharood v. Hatfield, 210 N.W.2d 275 (Minn. 1973).
JOHN SIMONETT is a retired justice of the Minnesota Supreme Court and a member of the law firm of Greene Espel. Justice Simonett practiced law in Little Falls, Minnesota, for 29 years.