Online debate isn’t exactly known for encouraging politeness. Shielded behind computer screens, some people behave in ways that are downright rude — or worse. As the practice of law moved online with the COVID-19 pandemic, those familiar hazards to civility arose in the legal profession as well.
“Lawyers and judges routinely tell me that they are experiencing a great deal of incivility in their legal practices and in their courtrooms,” said Erika Harold, executive director of the Illinois Supreme Court Commission on Professionalism.
“The pandemic has certainly exacerbated people’s sense of feeling frustrated and overwhelmed,” she said. “And research shows that when people feel overwhelmed and stressed, they’re more likely to behave in ways that are uncivil.”
Incivility can appear in a sarcastic or condescending attitude or full-on verbal abuse. It can be found in a snarky reply to an email, in negotiations where attorneys play hardball by not agreeing to reasonable requests or in a particularly heated discovery process.
Just how bad is it? That may depend on your point of view.
The Illinois Supreme Court Commission on Professionalism conducts a survey every seven years to evaluate whether law practitioners and judges foster cultures of civility and professionalism. About 89% of attorneys said during the pandemic that the lawyers they engaged with were civil, according to a randomized survey of 1,508 Illinois attorneys in August and September 2021.
But the picture was less rosy for those who faced darts related to their gender, age or race. Acts of incivility also tended to occur at a disproportionately high level in civil rights, family, criminal and personal injury law as compared to other practice areas.
Harold keeps a vigorous schedule within the legal community — often in person. She has observed that in virtual settings, some people have become more emboldened to speak their minds or behave in an unprofessional manner, when they may not have felt so inclined if physically present in a courtroom. There are other potential pitfalls, too.
“If people are just communicating by email, tone can sometimes be misinterpreted,” she said. “And the kinds of relationships that would allow people to bounce back from minor frictions — they don’t exist or have not been cultivated during the course of the pandemic.”
Cook County Circuit Court Judge Thomas More Donnelly, of the Law Division, notices a lack of direct communication between some lawyers: a troublesome development, especially when attorneys need to be laying the groundwork for settlement. There’s less informal contact, such as stepping out to the hallway to converse or having side conversations that allow them to get to know each other.
“Right now, when I schedule pre-trial settlement conferences, I’ll often have the parties come into the room, and I’ll ask them, ‘Have you talked to your opposing counsel about this?’ and they’ll say no. Before March of 2020, that would have been unheard of.”
He said this failure to connect contributes to moments when tempers flare and ultimately results in a lack of reasonable compromise, leading to needless motions or disputes.
“That diminished interpersonal contact has had a detrimental effect on our legal system in that it spurs litigiousness and diminishes the mutual respect that previously existed,” Donnelly said.
Where incivility thrives
The Illinois court system charges the Commission on Professionalism with raising awareness and conducting training on civility issues. The commission emerged from a Special Supreme Court Committee on Civility created in November 2001, a time when “there was a growing perception that some members of the legal community had a diminished regard for civility and courtesy and were increasingly deploying scorched earth legal tactics,” Harold said. Of particular concern “was the sense that much of the incivility was rooted in gender and racial bias.”
That remains the case, according to the commission’s research. In its 2021 survey, instances of incivility tied to race, age and sex grew significantly from 2014. The number of attorneys who experienced incivility related to racially insensitive comments rose to 6.5% in 2021 from 1.6%. Respondents who experienced sexist comments increased to 12.3% in 2021 from 2.8%.
Harold herself recalled an incident when a firm where she worked hosted a business development event with a financial institution. An arriving executive assumed Harold was an assistant and “shoved papers in my hands, brusquely stating that he needed copies made before the presentation began,” she said.
“Had this executive spoken to an assistant in that manner, his behavior and tone would have been equally unprofessional,” she said. “But I was struck by the fact that when he saw me, he didn’t see an attorney with whom to network or who to consider giving business; he saw an assistant who needed to make copies.”
Harold was later introduced to the executive as a Harvard-trained litigator, and she “could see the embarrassment on that executive’s face. It would be my hope that after that experience, this executive would learn to treat everyone — both lawyers and staff alike — with respect. And I hope he wouldn’t make snap judgments regarding what a lawyer looks like.”
In the 2021 survey, four times as many respondents said they had been the target of inappropriate comments about their age or experience, rising to 16.6% from 4% in 2014.
“I think there is still, in the practice of law, an old boys kind of network,” Donnelly said. “I think that’s something to watch out for, particularly where younger women lawyers are getting bullied by older, more experienced male lawyers. That’s something that the judiciary has to be particularly on guard about.”
Donnelly recalled two instances where he witnessed this “disturbing” behavior in his courtroom. He described older men talking down to the women who were opposing counsel, accusing them of not knowing what they were doing, calling them incompetent and saying they were wasting their time, among other personal slights irrelevant to the pending litigation.
“It’s hard when you’re a younger lawyer and you’re just starting out in practice … to face off against people who’ve been around a while. … That shouldn’t be made any harder by abusive behavior,” Donnelly said.
Donnelly believes senior lawyers have a duty to mentor younger lawyers with patience and gentleness, even if they are opponents. Mistakes can be made — but “you can point them out gently.”
“There’s no need for an acerbic or caustic dressing-down in front of the bench with the purpose to humiliate, shame or coerce them into doing what you want them to do,” Donnelly said.
He, too, finds this type of behavior has been magnified over remote proceedings: “It’s easier to belittle somebody you can’t see in flesh and blood.”
First District Appellate Court Justice Jesse Reyes said such poor behavior is not pervasive, but “any type of incivility is too much” in the profession.
In the past 30 years, Reyes said, there has been an increased awareness of implicit bias, which occurs automatically and unintentionally yet affects judgments, decisions and behaviors. More understanding “that we’re all in the same boat” inevitably helps.
“We might look a little bit different,” Reyes said. “Someone might be taller or shorter. Our skin tone might be a little bit different. Our gender might be different. But we still have the same issues and concerns.”
Lawyers, judges as leaders
Polarization and hostility on social media almost trains people to react in ways that are harsh and vitriolic. Careers can be torpedoed by online behavior outside work as well. The Commission on Professionalism has tackled these modern issues in its training.
“Lawyers are part of the wider society, and everyone is being impacted by this becoming a norm,” Harold said. Yet lawyers, as trained problem solvers and advocates, should be equipped to be leaders in increasing civil dialogue, not just within the profession but in society as a whole. The commission encourages lawyers to embrace that role.
“It’s so important when they are on social media, even if they’re not talking about their practice or the law, to still conduct themselves in ways that exemplify civility and being a vigorous advocate without crossing that line into incivility,” Harold said. “Lawyers have an opportunity, at a time right now of great polarization and toxicity, to be part of the solution that’s desperately needed.”
Indeed, maintaining a civil legal profession requires a degree of self-awareness and initiative by all parties — and a firm hand from court leaders. Lorna E. Propes, a mediator with ADR Systems and recently retired Cook County circuit judge, considers it a judge’s “absolute primary responsibility” to manage a courtroom.
“It’s the judges’ role to make sure that the courtroom is a place of decency and appropriate behavior and comfort for the people that are there to participate in the judicial system,” Propes said. “So, if the judge doesn’t do that … then all is lost, because no one else can do it.”
Outside the courtroom, finding new ways to counteract shifts in daily contact may help. That might mean finding ways to include a little more warmth in online interactions — perhaps a Zoom breakroom to substitute for casual hallway conversation — or more effort to show up in person at events designed for networking.
Reyes is known to place great importance on being present at industry events, which he credits for giving him a “hands on the ground” awareness of issues in the community. Social occasions also allow for judges and attorneys to break bread together, which he believes can further promote civility in courtrooms. His busy schedule leaves him optimistic about the essential good nature of most people in the profession.
And for those otherwise inclined, some would say Chicago is a big city with a small legal community. Ensconced behind a screen or not, there will likely always be someone nearby — watching or listening — who knows someone.
“You never want to be disrespectful to someone who might be a friend of a friend, or a relative of a relative,” Reyes said. “I’m a firm believer in what goes around comes around. I think that the sense of a small-town community in a large city is very helpful towards making sure that people treat each other with civility.”