The Importance of Civility in the Civil Justice System
Civility in the civil justice system is about treating the system and its participants (opponents, witnesses, judges, and court staff) with dignity and respect. The trial lawyers of Abramson Smith Waldsmith LLP, advocate and fight zealously for our clients, but we always remember that our individual and collective reputations and the viability of the legal system are more important than any disputed issue or case. Many attorneys have unfortunately forgotten this, which has contributed to the collective reputation of the field falling to such depths.
Although lawyers have always been subject to scorn because we take sides in hotly contested public disputes, even William Shakespeare acknowledged that the justice system is grounded in civility. In his play The Taming of the Shrew, Shakespeare wrote:
“And do as adversaries do in law – strive mightily but eat and drink as friends.”
Abramson Smith Waldsmith LLP, and specifically partner Bill Smith, have advocated ferociously on behalf of civility in our profession. Bill strives to ensure, for the benefit of the system and its participants, that we do not lose our way as a profession. For the law is not just another “business,” rather than a noble profession. Attorneys and parties collectively cannot allow incivility to manifest, in bad behavior during discovery, distasteful advertising, or rudeness to judicial officers. We must work together to bring civility back and drive out incivility.
Bill’s effort and movement has created momentum. Attorneys are recognizing what incivility is, how it manifests, how to combat it, and then trying to do something to change the tone. As Bill can attest, good behavior based on respect has the power to influence the behavior of others; it is an infectious attitude. With civility, the attorneys at Abramson Smith Waldsmith LLP, have found the practice of law easier, less stressful, less costly, and more profitable for their clients.
Our Role in Developing the Civility Pledge for California Lawyers
Civility matters in the legal profession. It distinguishes the profession from other professions and business. Maintaining and advancing civility is not only important to those of us involved in the practice of law, but also for clients. Civility makes the legal process more efficient and inexpensive for clients. Bullying and dishonesty prolong legal disputes and often lead to unjust results. They have no place in our legal system.
Abramson Smith Waldsmith LLP has been at the forefront of a 20-year effort in California and the United States to reestablish the civility that once existed in our profession. Unfortunately, some lawyers have viewed the law more as a business than a profession. This view has encouraged and facilitated misbehavior and poor treatment of opponents rather than as colleagues with a common goal of justice for their clients.
Abramson Smith Waldsmith LLP, has been very active in the American Board of Trial Advocates (ABOTA), the national organization leading in teaching that civility matters. In fact, ABOTA created a “Civility Matters” program in approximately 2007 to teach the importance of civility. Abramson Smith Waldsmith LLP, partner, Bill Smith, was a member of the ABOTA Civility and Professionalism Committee that created this program and has participated in over 40 Civility Matters programs all over California and other states. These programs are aimed at law students, bar associations and law firms.
Bill Smith has led the effort to return the legal practice to the profession of integrity and honor. Mr. Smith led the civility program for the San Francisco ABOTA chapter for the last 15 years. The San Francisco chapter leads the nation in conducting six to eight Civility Matters programs a year. Mr. Smith also led the program for Cal ABOTA, the regional ABOTA program made up of the eight California chapters of ABOTA. He also was Chairman of the ABOTA national Civility and Professionalism Committee for several years and remains on that Committee. In 2020, he received a national award from ABOTA for his work on this important subject. In 2014, Mr. Smith received the San Francisco ABOTA Chapter’s highest honor, the Don Bailey Civility Award, for his work on this subject.
Mr. Smith was President of Cal ABOTA in 2018 and before that he worked closely with Cal ABOTA in establishing a civility oath or pledge for all new lawyers in the state. He worked in conjunction with Orange County lawyer, Doug DeGrave, in getting the California Supreme Court to adopt the civility pledge in 2014 which is now codified in California Rules of Court, Rule 9.7 as follows:
“As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy and integrity.”
Mr. Smith was instrumental in creating a desk sign of the pledge for all California judges so they can remind lawyers of the importance of civility in representing clients in court.
Since 2014 all new lawyers must take this civility pledge. Recently the California Civility Taskforce, consisting of California lawyers (including Mr. Smith) and the California Judges Association, studied the lack of civility and proposed changes in Rule 9.7. The changes ensure that all lawyers in California take the Civility Pledge annually and are educated in the importance of civility through continuing legal education programs. This proposal is out for comment to California Bar members and is anticipated to take effect in 2023.
It is noteworthy that the Task Force credits ABOTA for “inspiring greater focus on civility and professionalism by convincing states to add civility language to their oaths.”
Many of the Civility Matters programs Mr. Smith conducted from 2008 to present were with fellow Cal ABOTA member. These programs regularly included a practicing judge, including the national judicial leader of civility, Justice William Bedsworth of the 4th Judicial District of California in Orange County. There is no doubt that Justice “Bill” Bedsworth is the leading jurist on the subject.
Justice Bedsworth is the author of the two key civility appellate cases in California: Kim v. Westmoore Partners Inc. (2011) 201 Cal.App. 4th 267 and LaSalle v. Vogel (2019) 36 Cal.App. 5th 127. Justice Bedsworth’s words in these opinions are poetic and deserve to be quoted to illustrate just how significant his leadership on civility has been.
In Kim, a legal sanctions case for bad attorney behavior, Justice Bedsworth wrote:
“Our profession is rife with cynicism, awash in incivility. Lawyers and judges of our generation spend a great deal of time lamenting the loss of a golden age when lawyers treated each other with respect and courtesy. It’s time to stop talking about the problem and act on it. For decades our profession has given lip service to civility. All we have gotten from it is tired lips. We have reluctantly concluded that lips cannot do the job; teeth are required. In this case, those teeth take the form of sanctions … (F)or serious and significant departures from the standard of practice, for departures such as dishonesty and bullying, such steps are necessary … It is time t make it clear that there is a price to pay for cynical practice.”
Eight years later in LaSalle, Justice Bedsworth cited Code of Civil Procedure, Section 583.130 which provides: “It is the policy of the state that a plaintiff shall proceed with reasonable diligence in the prosecution of an action but that all parties shall cooperate in bringing the action to trial or other disposition.” In other words, “shall cooperate” is California policy and lawyers should cooperate in resolving cases rather than fighting and wasting time and money.
Justice Bedsworth reminded all of us that lawyers are officers of the court when he wrote: “The term officers of the court with all the assumptions of honor and integrity that applied to it must not be allowed to lose its significance.” Again, lawyers need to get along with each other and that benefits clients.
Justice Bedsworth finished the LaSalle opinion with a quote from Supreme Court Justice Warren Burger:
“Lawyers who know how to think but have not learned to behave are a menace and a liability … (T)he necessity of civility is relevant because they are the living exemplars — and thus teachers — everyday in every case and in every court and their worst conduct will be emulated and perhaps more readily than their best.”
When Mr. Smith was President of Cal ABOTA in 2018, he created a new judicial civility award named after Justice Bedsworth, and honored him with the first judicial civility award. This award was not given again until November 2022 when it was presented to Judge Barbara Kronland of the San Joaquin County Superior Court. It is the highest judicial civility award available and it will be given only to those judges who advance civility in California.
Mr. Smith and Abramson Smith Waldsmith LLP have devoted countless hours to advancing civility in California because civility matters. Our clients get the benefit of the reputation we have developed, translating into better results achieved in less time at less cost.