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Civility: Ample talk, no toolsKimball R. Anderson of Winston & Strawn, Chicago, a Laureate of the ISBA Academy of Illinois Lawyers, orally presented a paper titled “Who Should Speak on Civility in Civil Litigation?” during the Allerton Conference in April at Starved Rock State Park. The edited text follows. • • • In September 2005, the Illinois Supreme Court announced two new programs aimed at promoting lawyer civility. First, the court promulgated new and amended rules establishing continuing legal education requirements in Illinois. The requirements include the study of professionalism. Second, the court established a permanent Supreme Court Commission On Professionalism. The first wave of Illinois lawyers will have completed the initial two-year cycle of MCLE work. Moreover, the Commission On Professionalism recently has completed a Survey On Professionalism. Little else has been accomplished to date on a statewide basis. Illinois lawyers and judges still lack effective tools to deal with uncivil behavior in civil litigation. The commission’s recent survey revealed, to no one’s surprise, that lack of civility is perceived to be a problem in Illinois. The lack of civility in our profession has been a concern at least since I started practicing law in 1977. The issue has been studied to death by various bar associations and courts. The ABA, for example, formed the Stanley Commission in the mid-1980s to address the growing concern that our profession was moving “away from the principles of professionalism.” The Stanley Commission Report adopted a definition of professionalism first articulated by Harvard Dean Roscoe Pound in 1953. The report was followed in the 1990s by the MacCrate Report, the Haynesworth Report, the Conference of Chief Justices’ National Action Plan On Lawyer Conduct and Professionalism, the Seventh Circuit Civility standards, etc. Virtually all these reports and studies decried the evolution of the practice of law from a profession to a business. In response, various bar associations and courts have adopted aspirational civility goals. The problem is not that the practice of law is a business; it clearly is a big business. We should not kid ourselves otherwise. We should not pine for the good old days, if they ever existed, when lawyers and the public viewed the legal profession as a high calling characterized by the pursuit of truth and justice, and not the almighty dollar. Today, lawyers in private practice are under pressure to generate as much profit as possible. Large law firms report their profits per partner annually to The American Lawyer magazine. Profits per partner, like a corporation’s stock price, must inevitably rise every year. Otherwise, our top partners flee to more profitable firms, and we are unable to recruit the best and brightest lawyers. Even our clients, who complain about billing rates, look at law firm profits per partner as evidence of who has the really top lawyers in our profession. At present, incivility in litigation is rarely engaged in carelessly or thoughtlessly. To be sure, we have a few people in our profession, who, as in other professions, are congenitally mean-spirited. But they are not the problem. Most lawyers are pleasant and polite. The problem is that incivility in litigation is a profitable strategic tactic. If our profession in Illinois wants to deal with uncivil conduct in litigation, we need to make that conduct unprofitable. Our Illinois Supreme Court Commission on Professionalism found, in its recent survey, that strategic incivility is widespread and deliberate. The survey found that strategic incivility: “includes misrepresenting or stretching the facts, playing hardball, indiscriminate use of pleadings or motions, etc. Strategic incivility is a tactic used by some lawyers to gain an advantage over their opponent. It is found throughout the profession, but it is most prevalent in litigation – especially during discovery.” (Commission Survey, at 11, available on the Internet at http://ilsccp.org). I would add to the commission’s finding my observation that strategic incivility also includes attacks on opposing counsel and the use of sanctions motions as a litigation tactic. The existence of widespread strategic incivility is hardly surprising. Clients want to win. One way to win is to wear down your adversary. Wearing down your adversary increases the likelihood that your adversary will make mistakes, run out of money, lose interest in the litigation, and/or realize that more may be lost than gained in continuing the litigation. The problem with strategic incivility, in my opinion, is not that we dislike rudeness. We do, but so what? The real problem with strategic incivility is that it exacerbates an increasing lack of access to justice in Illinois, and elsewhere. Increasingly, individuals and small businesses cannot afford to litigate. Taking controversies to court is not economically feasible for most litigants unless everything is handled quickly and efficiently. Strategic incivility is sand in the gears of justice. Strategic incivility slows down the process and makes litigation prohibitively expensive for many. Few can afford to respond to massive interrogatories, a blizzard of motions, lengthy briefs that attack one’s character and integrity, endless depositions, document requests, and requests for admissions. The cost of litigating with someone who contests everything is substantial, if not prohibitive, for many litigants. The result is a lack of access to justice. Because the practice of law is big business, the solution to the problem of strategic incivility lies in making it an unprofitable business. In our Illinois court system, we have no court rules that even address uncivil conduct, let alone make it an unprofitable business. Rule 137 of the Illinois Supreme Court, for example, does not come close to addressing the problem. Although it addresses pleadings and papers interposed for an “improper purpose, such as to harass or cause unnecessary delay or needless increase in the cost of litigation,” (the rule) is rarely invoked by lawyers and is even more rarely the basis of sanctions by our courts. Few lawyers and judges perceive Rule 137 as a basis for sanctioning uncivil behavior. Indeed, as found in the recent survey conducted by the Commission on Professionalism (at 16), judges “rarely” impose Rule 137 sanctions even for false and frivolous pleadings. Illinois lawyers and judges need a new tool to deal with strategic incivility. The starting point would be a new rule patterned after 28 U.S.C. §1927, which sanctions “vexatious” conduct. Strategic incivility certainly is a type of vexatious conduct. In Unique Concepts, Inc., v Brown, 115 F.R.D. 292 (S.D.N.Y. 1987), for example, the district court found sanctions appropriate under 28 U.S.C. §1927 when the parties had engaged in uncivil conduct. The Court stated (at 292): “This case has been marred from its inception by incivility and a consistent lack of cooperation between counsel. Counsel have burdened the Court with an avalanche of wasteful correspondence replete with inflammatory accusations by both sides, including descriptions of opposing counsel as “unctuous,” “deceitful,” engaging in “shoddy practice,” and “playing hard and fast with the rules.” The new rule should include an additional provision allowing judges, on their own motion, to strike uncivil papers. Striking uncivil papers will make the business of strategic incivility unprofitable because the lawyers will have to re-do their work products. Moreover, a stricken paper may result in procedural defaults that are costly to the lawyer and the client. Many clients will not pay for “do-overs,” and most clients will hold their lawyers responsible for the economic consequences of procedural defaults. A new rule specifically addressed to the problem of strategic incivility will take the profitability out of this type of conduct. Unprofitable practices will not last long in our highly competitive industry. In summary, the Illinois Supreme Court needs to speak on civility in civil litigation. It needs to speak, not with aspirational goals or CLE requirements, but with new rules that provide effective tools for lawyers and judges to deal with strategic incivility. Recognizing that the practice of law is a big business, the Supreme Court should adopt new rules that take the profitability out of strategic incivility. The future of access to justice in Illinois depends on this initiative.
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