Berks County Bar Association The Berks Barrister Fall 2020 - 7

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"WITH ALL DUE RESPECT
TO THE COURT, I DISAGREE"

THE STATE OF CIVILITY IN
PENNSYLVANIA COURTS
By James E. Gavin, Esquire

A

s early as 1971, Chief Justice Warren E. Burger of the
United States Supreme Court called for increased
civility in the practice of law. In a presentation before
the American Law Institute, Chief Justice Burger said: "With
passing time I am developing a deep conviction as to the necessity
for civility if we are to keep the jungle from closing in on us and
taking over the hand and brain Man has created in thousands
of years, by way of rational discourse and in the deliberative
processes, including the trial of cases in the courts.... Without
civility no private discussion, no public debate, no legislative
process, no political campaign, no trial of any case, can serve its
purpose or achieve its objective. When men shout and shriek or
call names, we witness the end of rational thought process if not
the beginning of blows and combat."
More than two decades later, the issue of civility had not
resolved itself to Chief Justice Burger's satisfaction. Speaking
to the Fordham Law School in 1995, Burger lamented the loss
of civility in the practice of law. He complained about lawyers
"whose idea of counsel's function may have been influenced by
the clownish performances seen on television programs." He also
called out judges who tolerate this conduct, noting, "When even
a few judges tolerate ... misconduct, the administration of justice
suffers, and it leads to repetition of that conduct by other lawyers."
To Chief Justice Burger, civility is critically important.

In his aptly titled book, Civility, Yale law professor Stephen
L. Carter anecdotally recounted the way Supreme Court Justice
Lewis Powell would ask questions of litigants before the Supreme
Court. Justice Powell would say, "Counsel, would you mind if I
asked you a question?" Obviously, Justice Powell was not asking
for permission to ask a question, nor would anyone think he
needs permission. Further, no one would think counsel before
the Supreme Court would dare say they did mind answering
questions. Professor Carter's point was although Justice Powell did

not need to ask for permission, he presented his questions in the
way he did out of respect for the attorneys who appeared at the
bench. To Professor Carter, this is the type of civility demanded
of all of us.
Nonetheless, the lack of civility is rampant. More than a
year ago, my firm represented a client tangentially involved in
someone else's litigation. During that minimal involvement, my
firm received emails from a lawyer in the case. One of the emails
is set forth below in the form and font as received, including the
spelling errors:
	 "please notify your partners you will be sued
I confirmed 15 minutes ago you are a nasty incompetent...
WHO DO YOU THINK YOU ARE?
i WILL ALSO REPORT YOU TO THE
dISCIPLINARY bOARD."
The good news is that my firm was not sued nor were any
complaints filed against our attorneys with the Pennsylvania
Supreme Court Disciplinary Board. Reflecting on that
correspondence, and others received over the years, the question
is how do we mitigate this behavior to ensure the courts work
as intended? Law school teaches the practice of law is meant
to be a noble profession. We know reasonable people can and
will disagree. As lawyers, don't we know we should behave more
professionally?
In truth, attorneys are not the only ones capable of incivility.
In 2015, a dissenting Supreme Court Justice said the majority
opinion was "...couched in a style that is as pretentious as its
content is egotistic." The Justice went on to say, "But what really
astounds is the hubris reflected in today's judicial Putsch." In
other words, the majority was accused of excessive pride in a
decision amounting to the violent overthrow of a government.

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Fall 2020 | 7


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Berks County Bar Association The Berks Barrister Fall 2020

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