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Evolution of Three-Foot Laws for Passing Cyclists

 

This commentary is hardly the first paean to civility in legal advocacy. Indeed, the local rules for the Southern District of Ohio begin with an introductory statement on civility, attributed to all the judges of the court. But is there a stronger case for civility than the traditional appeals to common decency and the public perception of lawyers? I think so: At least with respect to oral and written advocacy, avoiding extreme or disparaging language tends, in my experience, to improve the strength of one’s arguments. It also benefits the rule of law itself.

 

The Introductory Statement on Civility that opens the Local Rules for the Southern District of Ohio provides a good rehearsal of the traditional case for civility in legal practice. One reason is common courtesy; the judges observe that “[i]nvolvement in the legal system does not diminish the desirability of such conduct.” Another is respect for the profession; lawyers who make “life difficult…bring disrepute on the legal profession.” A related third is respect for the legal system, on the theory that “treating litigation as a ‘game’…brings disrespect upon the legal system as
a whole.”

 

These are all valid reasons for civility in litigation, but there are also incentives for a different style—one that uses extreme language, impugns the motives of opponents, or mocks. Among these incentives are the desire of a client to see its advocate striking hard blows, or of the advocate to demonstrate to a client that he or she is striking hard blows. Harsh or mocking language is an easy way to do that because one can see it without even understanding the argument in which it’s deployed. Increasingly, moreover, there seems to be an aspect of our culture that prizes “fighting” for its own sake.

 

That kind of style is not effective. Just over a decade ago, the Sixth Circuit set forth “good reasons not to call an opponent’s argument ‘ridiculous.’” Bennett v. State Farm Mut. Auto. Ins. Co., 731 F.3d 584,584 (2013). These included not only “civility,” but also “the near-certainty that overstatement will only push the reader away…; and that, even where the record supports such an extreme modifier, ‘the better practice is usually to lay out the facts and let the court reach its own conclusions.’ ” Id. at 585.

 

In my experience, moreover, extreme, harsh, or mocking language in legal practice isn’t just ineffective; because such language tends to work as an analytical crutch, often it affirmatively hurts the strength of the argument. Actually explaining why an opposing argument is wrong—step by step, so that your conclusion is inescapable—is challenging. Name calling is a substitute for that hard work. So too with impugning motives. Asserting that a contrary argument is disingenuous is usually easier than grappling with how such an argument might work—a prerequisite for generating an effective rebuttal. I think this is why the most insulting briefs are often wrong on the merits. See Bennett, 731 F.3d at 585 (“But here the biggest reason is more simple: the argument that State Farm derides as ridiculous is instead correct.”); Bearden v. Ballard Health, 967 F.3d 513 (6th Cir. 2020).

 

Civility in advocacy also supports the design of the American legal system itself. The ideal of our system is that cases are decided on the facts and the law, not on the identity of the party or advocate. To the extent that litigation is about anything other than the merits, that undermines the integrity of the system. Practically and professionally, therefore civility is the best approach to litigation.


Glassman, former US Attorney for the Southern District of Ohio, 2016-2019 and current Cincinnati Office Managing Partner at Squire Patton Boggs (US) LLP.
Ben presented at the Professionalism Take 10 program in January.

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