Law Day 2023

Opposing Impulses Why we celebrate civility — but don't always achieve it

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Opposing Impulses Why we celebrate civility – but don’t always achieve it LAW DAY 2023

Andrea Hanis Editor Julie Leuck

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EDITOR'S NOTE

Enlightened behavior requires understanding If you read this magazine cover to cover — full album style, start to finish — you’ll notice recurring ideas as we examine the issue of civility under the 2023 Law Day theme “Cornerstones of Democracy: Civics, Civility and Collaboration.” Pandemic stress, social distance and mental health issues may help explain some crude language or rude acts. But other blunt, eye-popping comments and incidents make you wonder how this stuff is still happening in 2023 — in the workplace, no less. We set out to explore the Illinois legal community’s efforts to promote a more civil profession and society, as well as what challenges remain. And note: Our Law Day content is free for all to read and share, with no paywall.

ANDREA HANIS Editor, Chicago Daily Law Bulletin

Reporter Grace Barbic spoke with court officials about the state’s formal efforts to study incivility and in turn educate and improve the profession. Some see poor behavior stemming from a pandemic-era lack of familiarity and bonding between parties. We’re slowly coming together in person more often, but the myriad impacts of technology aren’t going away, introducing a need for opportunities to connect with intention across forums. But make no mistake: Behaving appropriately in a digital environment should be considered a core competency for working life. On the other side of the struggle to deal with bad behavior — the disciplinary side, that is — reporter Emma Oxnevad asked current and former officials with the Illinois Attorney Registration and Disciplinary Commission what makes incivility survive despite many motivations to the contrary. Is it the pleasure of venting? The rush of setting an opponent back on their heels? Or is it actually profitable? (Spoiler alert: If so, no one will admit it.) Three sources met our challenge to thoughtfully answer a series of pointed questions on civility: Patrick A. Salvi II of the Illinois Trial Lawyers Association, Terry A. Fox of the Illinois Defense Counsel and Stephanie Villinski of the Illinois Supreme Court Commission on Professionalism. Don’t miss their well-stated viewpoints. And special thanks to the judicial leaders — and our own president and publisher, as well as two of our columnists — who shared insights from their own experiences. Our annual Law Day Letters from bar and industry associations were encouraging as leaders reflected upon more collaborative efforts and events that brought practitioners together. And law school deans gave us hope that the coming wave of lawyers will be well-equipped to identify and navigate suitable behavior in the profession. Of course, what we learn in school or early in our career isn’t the end. Rather, it’s the beginning of what must be a lifelong effort to refine our understanding and respect for others.

That doesn’t sound so hard … does it?

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distance social the

Conversation, connection may be antidotes for some of our current incivility

By Grace Barbic

CHICAGO DAILY LAW BULLETIN • LAW DAY 2023 9

O nline debate isn’t exactly known for encouraging polite - ness. 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 experi - encing 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 atti- tude 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 profes - sionalism. 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 re- lated to their gender, age or race. Acts of incivility also tend- ed 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 communi- ty — 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 some - times be misinterpreted,” she said. “And the kinds of relation- ships that would allow people to bounce back from minor fric- tions — 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 Divi- sion, notices a lack of direct communication between some lawyers: a trouble- some development, espe- cially 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.

Judge Thomas More Donnelly

“Right now, when I schedule pre-trial settlement confer- ences, 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 reason - able compromise, leading to needless motions or disputes. “That diminished interpersonal contact has had a detri- mental effect on our legal system in that it spurs litigiousness and diminishes the mutual respect that previously existed,” Donnelly said.

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WHERE INCIVILITY THRIVES The Illinois court system charges the Commission on Professionalism with raising awareness and con- ducting 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 particu- lar concern “was the sense that much of the incivility was rooted in gender and racial bias.” That remains the case, according to the commis- sion’s research. In its 2021 survey, instances of inci - vility tied to race, age and sex grew significantly from 2014. The number of attorneys who experienced in-

Erika Harold, center, executive director of the Commission on Professionalism, attends orientation for 1Ls at NIU College of Law with John O’Reilly, from left, of the commission; attorney Omar Salguero; Will County Circuit Judge Vincent F. Cornelius and NIU Law Dean Cassandra L. Hill. — Photo courtesy Commission on Professionalism

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 some- thing 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 coun- sel, 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 start - ing out in practice … to face off against people who've been around a while. … That shouldn't be made any harder by abu - sive 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 co- erce 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 in- creased awareness of implicit bias, which occurs automatical- ly and unintentionally yet affects judgments, decisions and be - haviors. 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.”

civility related to racially insensitive comments rose to 6.5% in 2021 from 1.6%. Respondents who experienced sexist com- ments 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 finan - cial 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 unprofession- al,” 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 Har- vard-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.”

CHICAGO DAILY LAW BULLETIN • LAW DAY 2023 13

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 Com- mission 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 pro - fession 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 con- duct themselves in ways that exemplify civility and being a vig- orous 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 des- perately needed.”

Justice Jesse Reyes

to include a little more warmth in online interactions — perhaps a Zoom breakroom to substitute for casual hallway conversa- tion — 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. So- cial 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.” Illinois 1st District appellate justice Jesse G. Reyes swore in a mentee, Alejandro Cuautli, to practice law. Cuautli is now an assistant public defender in Winnebago County. — Photo courtesy Jesse G. Reyes.

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, con - siders it a judge's “absolute primary responsibility” to manage a courtroom. “It's the judges' role to make sure that the court-

Lorna E. Propes

room is a place of decency and appropriate behavior and com- fort 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

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Viewpoints on civility

Terry A. Fox

Patrick A. Salvi II

We sought a variety of perspectives on professional behavior — and found a lot of agreement. Terry A. Fox of the Illinois Defense Counsel, Patrick A. Salvi II of the Illinois Trial Lawyers Association and Stephanie Villinski of the Illi- nois Commission on Professionalism contemplated our ques- tions on what’s going right — and wrong — with how attorneys act. — Chicago Daily Law Bulletin staff

Stephanie Villinski

Is incivility trending up or down in your experience, and why?

Fox: I think incivility peaked during the COVID-19 pandemic due to lack of in-person communication. I find people are getting slightly more civil as we re- turn to more in-person advocacy — ex- cept in Cook County, where the state court judges apparently are refusing to return to in-person hearings.

Salvi: As an eternal optimist, I want to say incivility is trending down. However, lawyers should always strive to counsel their clients to allow for civility, both in terms of cordiality and (more impor - tantly) how we approach cases. When a lawyer is polite but takes highly unrea- sonable positions in a way that unneces- sarily prolongs litigation on issues other than the legal and factual merits, that is not civility. We can be zealous advo- cates and civil at the same time.

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Where is the line between incivility and zealous advocacy?

Fox: When it turns personal and when profanity comes out.

Salvi: Zealous advocacy allows for law- yers to ask questions, make arguments and file motions that perhaps are weak or novel or in good faith in an effort to change the law. But it does not allow actions that by any reasonable assess- ment would be out of bounds, like ha- rassment of a party or witness, or filing motions designed to delay.

Villinski: The Rules of Professional Conduct lay out what can be considered the baseline for an attorney’s behavior as a representative of clients, an officer of the legal system and a public citizen. The commission aims to promote at- torney behavior that goes beyond this baseline in service to improved access to justice and a commitment to elim - inate bias and divisiveness within the legal profession. Zealous advocacy includes repre- senting clients in a well-informed, fair, passionate and professional manner. Incivility, on the other hand, is demon- strating disrespectful and disagreeable behavior that detracts from the admin- istration of justice.

What could the legal community be doing better to tamp down on incivility?

Fox: Highlight the issue more. There should be stronger peer pressure among counsel to steer lawyers away from that type of conduct. Individuals can deal with it right when it happens; do not fes- ter over it and act later. If someone is rude to you, perhaps a response of “Not to be rude, but my take on this is that the chicken was already on the road before my client came over the hill.” If it contin- ues, ask the lawyer why they are being rude and uncivil to you. Most people do not realize in the heat of argument that they have crossed a line.

Salvi: The legal community should do its best to draw some bright lines where, if crossed, there will be strong penalties. Motions for sanctions should not be brought lightly, but those same motions should be seriously considered by judg - es and granted when attorney behavior must be addressed. The unfortunate truth for judges facing these motions is that granting them might be uncomfort- able, but at times, it is necessary to en- sure that lawyers know there are guard- rails to zealous advocacy.

Villinski: If incivility happens in the courtroom, other attorneys should speak up and address the bad behavior. Judges should also outline what is ex- pected in their courtroom and intervene when incivility occurs to let attorneys know that it won’t be tolerated. For example, Judge Michael J. Ch- miel of Illinois’ 22nd Circuit Court issued a series of standing orders that began with a section reminding parties and attorneys to engage in professionalism and civility in the handling of court cases and to confer on pending matters before their court date. There are penalties and enforcement for incivility, even disbarment. A recent example in Illinois is In re Felipe Nery Gomez . Attorney Gomez sent threaten- ing and harassing emails to seven attor- neys during pending litigation and was subsequently suspended from practic- ing law for three years.

CHICAGO DAILY LAW BULLETIN • LAW DAY 2023 17

If we view civility as essential to trust and collaboration, why would attorneys choose not to be civil?

Fox: We don’t trust and collaborate with opposing counsel, usually. We are advo - cates. The problem lies in going too far.

Salvi: It is hard to know why a lawyer acts uncivil in a given situation. Some- thing in his or her personal life? Client pressure? Whatever the case may be, it is important for lawyers to be aware of

Villinski: Clients and coworkers often place pressure on attorneys to be overly aggressive to win a case. If they’re suc - cessful and the uncivil behavior is re- warded, it is more likely to continue. Moreover, if opposing counsel is un- civil, it can be challenging not to react similarly. It’s human nature to mirror others’ behavior and treat people how they treat you. This can be difficult to interrupt, but listening to understand the other person’s perspective instead of im - mediately reacting is a good first step. In addition, we all know that being an attorney is time-consuming and stress- ful. If we don’t have healthy outlets to release our stress like exercise, time off or doing things we enjoy, it’s easier to overreact in challenging situations.

these pressures or feelings and try to avoid allowing it to bleed into their dealing with opponents.

What has been your most effective means of curbing incivility in your legal practice?

Fox: Lead by example; attempt to deflect by re-focusing the conversation.

Salvi: Preparedness is the great equal- izer. An act of incivility, when I am emi- nently prepared, comes across as little more than either ill-preparedness or an insecurity the lawyer must have regard- ing his or her case. If all lawyers are pre- pared, incivility is unlikely to have any effect, let alone the effect the less-than- civil lawyer desires.

Can we trust our colleagues who are not civil?

Fox: This question calls for a tenuous leap of logic that incivility equals untrust- worthiness or dishonesty. I do not see that connection. I know plenty of very pleasant lawyers who I do not trust in terms of being on opposite sides. Law- yers who are uncivil cause colleagues not to want to work with them because they are unpleasant.

Villinski: If a colleague is practicing strategic incivility, there is a question of trust. Strategic incivility includes things like intimidation, misrepresenting the facts and negotiating in bad faith. This type of behavior undermines trust in the justice system and should be called out immediately.

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Do lawyers who act civil put themselves at a competitive disadvantage?

Fox: No, I believe it is quite the reverse. Uncivil lawyers put themselves at a large competitive disadvantage. No judge wants to hear petty snide remarks directed at the other side. In non-court settings, the rude lawyer often moti- vates opposing counsel to work harder than she would otherwise do.

Salvi: Lawyers who act civil are at a competitive advantage. In certain in- stances, the uncivil lawyer may benefit from incivility or otherwise get away with uncivil behavior without being sanc- tioned or punished. In the long run, the civil lawyer is the one whose reputation remains intact within the bar and in the eyes of the bench.

Villinski: Lawyers who act civil do not put themselves at a competitive disad- vantage. Being civil does not mean you have to agree with the other person’s position. Instead, it means that you can zealously advocate your position with- out demeaning the other person or their position. I would argue that this type of civil advocacy can often lead to a more satisfactory outcome for both sides.

Do you have other thoughts or observations to share on civility?

Fox: Everyone has a much more enjoy - able time as a lawyer when they do not have to deal with unprofessional jerks. Practicing law is hard enough without that overlay. This sounds perhaps too simplistic, but if we remind ourselves to dial it back each day, there would be less civility issues.

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The road to civility is platinum

PETER MIERZWA

President and Publisher, Law Bulletin Media

W hen the American Bar Association announced that civility would be one of this year’s subjects for Law Day, I was excited because we have covered this topic in our news and seminars for decades. The first question legal leaders try to answer is, “What do we mean by incivility?” Over the years, what has become clear is that incivility, like beauty, often lies in the eye of the beholder. “Identifying and studying incivility can be difficult. … Behavior you consider uncivil may not be regarded the same way by [others] — but if you feel disrespect- ed, whether your counterpart intended it or not, your work will suffer,” writes Christine Porath, professor of management at Georgetown University, in Harvard Business Review. “In addition, what’s considered un- civil varies by culture, generation, gender, industry, and organization.” Think of your own experience where one person’s compliment was another’s insult. According to Profes - sor Porath, “incivility usually arises from ignorance — not malice.” Behavior that is deemed rude or uncivil by the recipient may not have been so intended, and this raises a significant challenge for all of us. The Illinois Rules of Professional Conduct, as well as local court rules for both federal and state courts, provide that lawyers maintain “a professional, courte- ous and civil attitude toward all persons involved in

the legal system.” In the broader business world, there are no formal rules of civility, but incivility within an organization has been proven to impede productivity, efficiency and profitability. Most of us intend to be civil most of the time. It is the unintended incivility that we must guard against. Unintended incivility is often driven by unconscious biases that restrict our ability to see other points of view and can result in seemingly innocuous com - ments or behavior being deemed by the recipient as uncivil or worse. Biases of affinity, confirmation, ex - perience and beauty are just a few that can reinforce what we think is right and prevent us from standing in the shoes of others. Identifying and mitigating these biases is a learned skill that requires constant practice and can help us decrease incivility. Some might think that practicing the “gold - en rule” of treating others as you would like to be treated would solve the issues of unintended inci- vility. But because our definition of incivility varies widely, how we would like to be treated may not be appropriate for others. Instead, consider treating others as they want to be treated — the “platinum rule.” This requires a level of understanding and compassion for others that neutralizes our uncon - scious biases and leads to a more civil workplace, home and life.

CHICAGO DAILY LAW BULLETIN • LAW DAY 2023 21

Harsh words impress no one — including juries

I don’t know whether incivility is trending up in absolute terms, but we live in a fractious society, one where even our leaders call one another “liars,” level harsh criticism and engage in insulting name-calling. This conduct is tolerated by too many and actually admired by some. Attorneys may choose incivility in the mistaken be- lief that it makes them look tough or effective. In fact, nearly always, the opposite is true. Shrill or harsh words, insults, disdainful comments — this conduct signals weakness, not strength. Like it or not, most cases are won or lost on facts. Jurors do their best to look past the performance of the lawyers, whether that performance is dazzling, dry or even rude. But jurors do take note of in - civility. They find it distracting and uncomfortable. They recognize that it is inconsistent with the respect that our system of justice requires for credibility. So, incivility is a lose-lose-lose proposition: It never contributes to a legal victory; it is distasteful to judges, coworkers and oppos - ing counsel; and it undermines the public’s trust in and respect for the law and the legal system. All of us have worked hard for our law degrees. We must also work hard to ensure that the profession is ad- mired for its dignity.

REBECCA R. PALLMEYER

Chief Judge, U.S. District Court, Northern District of Illinois

Lawyers, judges play key role in restoring trust

T he pandemic blew a hole in the fabric of our society. We see it in the rise of crime and mental illness. We lost time and some of our civility. But we can make things better. Lawyers built American democracy, and we are the key to restoring our community. As president of the Il - linois Judges Association, I have seen our profession adapt to a new world of remote proceedings. I have seen judges go above and beyond to keep our justice system worthy of the public’s trust. As we build our future, let’s modernize our court pro - ceedings while being mindful that new technology can eradicate barriers to justice, or it can build new electron- ic barriers. We all are privileged to be lawyers and have the obligation to serve and respect the public. The more we focus on that goal, the more we can achieve civility together.

EILEEN O'NEILL BURKE

President, Illinois Judges Association

22 LAW DAY 2023 • CHICAGO DAILY LAW BULLETIN

Gather and break bread to bolster civility

M y first lessons in civility were at my mother’s kitchen table, where she held court. Butter pecan coffee cake and hot tea held the center, while the conversation and laughter of neighbors, friends, and family encircled the perimeter. While teaching English at the City Colleges of Chica - go, food proved to be a most natural topic for discussion and writing. Sharing stories of the spices, cooking meth - ods and culinary holiday traditions of our lives helped us to bridge the differences among the members of an ex - traordinarily diverse class. We cemented our new bonds at the end of the semester by each bringing a favorite food to share. Desktops were cleared of notebooks in favor of such delicacies as kolaches, spicy tamales, aloo gobi, gnocchi and kare-kare. During my assignment in domestic relations court, chocolate chip cookies on pretrial Thursdays were most effective in defusing high emotions, allowing us to fo - cus on negotiating a peaceful resolution for warring lit - igants. So, upon my arrival at our Illinois Supreme Court, you might imagine what comfort it was to discover that the justices not only live together during term but savor their meals together, too. It is in the court and confer - ence room where we hear, discuss and rule on cases. But it is in the dining room where we exchange the more intimate details of our families, travels, and passions; it is the breaking of bread that helps us advance genuine collegiality.

ELIZABETH M. ROCHFORD Justice, Illinois Supreme Court

In the early 1800s, Chief Justice John Marshall rec- ognized the benefits of camaraderie among jurists and arranged for U.S. Supreme Court justices to dine and board together during their terms. Sadly, time has worn away those traditions for most jurisdictions. Members of the Illinois bench and bar, I invite you to raise a fork in tribute to courtesy, gentility, decorum, tact, grace and inclusion. Respectful and dignified be - havior is essential to our professional success, and what delicious, palate-expanding fun we can experience together along the way!

CHICAGO DAILY LAW BULLETIN • LAW DAY 2023 23

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Why being bad feels good

JIBES MAY BE CATHARTIC IN THE MOMENT, BUT EXPERTS SAY THE COST IS HIGH

By Emma Oxnevad

I t’s no secret that lawyers are stereotyped as hard-nosed and combative to a fault, forgoing accepted social conventions and professional guidelines in pursuit of a win. While that may win cases on TV, practicing attorneys are acutely aware of the potential consequences of incivility: censure, suspension and, in particularly severe cases, disbarment. And yet, incivility persists. Could it be that attorneys are hard-wired to lose their cool? Or does the demanding, often unrelenting industry foster such behavior? Maybe it feels good, powerful even, to rage against the confines of a profession uniquely dictated by both rigid stan - dards and adversarial spirit. Or perhaps, more cynically, it pays to be belligerent. “There’s always been those types of unfortunate jokes or dark humor types of references to lawyers being uncivil and engaging in incivility,” said Melissa A. Smart, director of ed - ucation at the Illinois Attorney Registration and Disciplinary Commission. “And I think that oftentimes that might be derived from the misperception that lawyers have to be ag - gressive, or otherwise argumentative, in order to be deemed successful.” Smart suggested that an “imperfect storm” of increased technology and social media use merged with a hostile politi - cal climate contribute to today’s incivility. And the stress of the ongoing COVID-19 pandemic and reduced in-person connection may also be factors.

“There are people who have suffered loss, who have suffered illness, who are still suffering from long- term effects, that just had a whole bunch of bot- tled-up emotions going on during a shutdown period,” she said. “And now we are, as legal professionals, grappling with an entire - ly new legal landscape where court matters are being done in hybrid ways or via Zoom. There’s less networking and in-person camaraderie.” Wendy Muchman, the Harry B. Reese Professor of Prac - tice at Northwestern Pritzker School of Law and former chief of litigation and professional education for the ARDC, added that attorneys who commit incivility are often dealing with unaddressed personal struggles, which can be exacer - bated by the demands of the profession. Melissa A. Smart

CHICAGO DAILY LAW BULLETIN • LAW DAY 2022 27

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“Very often, when you get to the bottom of some - one who’s behaving in a way that we would say is rude, obnoxious or uncivil, there’s an underlying unad - dressed issue,” she said. “And very often it’s an is- sue of lawyer wellness, whether it’s an addiction issue or a mental health situation.” With a lawyer’s ultimate objective being to se - cure a victory for a client, the line between zealous

advocacy and incivility can begin to look more like a gradient. James J. Grogan, an adjunct professor at Loyola Universi - ty Chicago School of Law and former deputy administrator and chief counsel for the ARDC, said the gray area between standing one’s ground and incivility often manifests in attor - ney’s criticisms of judges. Grogan said attorneys should aim to convey "Judge, I think you got that wrong," not so much "Judge, you're a horse's ass." But that said, “that lawyer sometimes has to challenge

the process, so you have to give enough play to the person to be able to repre- sent that client in the con- text of a case.” Despite the ambiguity of the two concepts, Grogan offered a simpler mantra: “Obnoxious doesn’t mean zealous.” Grogan suggested that

Wendy Muchman

“ It feels good to the person doing it because it’s a release. It’s like a built-up explosion. But the problem is that you leave everyone in its wake decimated.” - Diana Uchiyama

incivility may operate as a form of “primal scream therapy” where one un- leashes pent-up emotions to achieve ultimate catharsis. However, he said, this method of release does not belong in the legal profession. “Incivility by its very nature means it’s disruptive and not appropriate,” he said. “You’ve got to distinguish that from sometimes being tough, being aggressive, being hard-nosed, [to] where you cross that line. Incivility has nothing to do with the process.” Diana Uchiyama, director of the Illinois Lawyers’ Assis - tance Program, said that the “win at all costs” mentality of James J. Grogan

Do we want to win at all costs?

CHICAGO DAILY LAW BULLETIN • LAW DAY 2023 29

the legal profession, com - bined with extremely de- manding workloads and a field filled to the brim with perfectionists, lay the groundwork for attorneys to stray outside the realm of accepted professional behavior. “We get accolades for winning, not so much for losing,” she said. “We don’t really get positive rein - forcement from, ‘You did

are similarly overrepresented in perpetrating impactful and memorable acts of incivility. “They’re in a position where they’re hiring, they’re promot - ing,” she said. “When you have microaggression behavior, you notice it more in that setting, done by a white male attorney versus a minority counterpart, because a minority is most likely not in a position of power.” Williams said years of exposure to microaggressions and more direct forms of incivility can begin to chip away at attorneys. “They’re like little paper

cuts,” Williams said of mi- croaggressions. “But after getting a paper cut over and over again, year after year, you are bleeding to death.” However, she said that while deliberate incivility may serve as a power trip for some attorneys, “kar- ma is going to come back.” And as a strategy, it might not be so smart.

Diana Uchiyama

your best; you argued despite having a difficult case.’” Uchiyama suggested that incivility may offer temporary catharsis for attorneys experiencing “hydraulic rage,” but it is ultimately not a healthy coping mechanism. “It feels good to the person doing it because it’s a release,” she said. “It’s like a built-up explosion. But the problem is that you leave everyone in its wake decimated.” She added that while perpetrators of incivility typically de- flect from their wrongdoing, those who are victims of such behavior can’t brush it off quite as easily. Some leave the industry “because they can’t deal with incivility, aggression, high toxic anger.” “I would say that repeated incivility and repeated micro- aggressions lead to increased mental health [struggles], in - creased chronic stress and sometimes increased maladap- tive coping mechanisms in order to manage the overwhelming feeling of having to deal with that over and over again,” she said.

Sonni Choi Williams

“Every case that I’ve dealt with where the other side was a jerk, the attorney really didn’t advance their cli- ent’s case,” she said. “It was a waste of their client’s time. It really doesn’t bode well for advancing their client. And they may have a temporary feeling of ‘I won this by totally being a jerk and winning the shouting match,’ but winning the shouting match doesn’t mean you’re going to win the case.”

Lockport city attorney Sonni Choi Wil- liams echoed this sentiment and recounted her own experiences facing both misogynis - tic and racist incivility. “I was called the c-word in my office one time because I wasn’t agreeing to some - thing that [the opposing counsel] wanted me to agree to,” she said. “I was shocked. And this is an older male attorney ... who had great influence in the community. He was so used to getting his way and when I said ‘no,’ that’s when his true colors showed up.” Williams described another instance where an older male attorney began dis - cussing his recent visit to China with her, including describing adjusting to using chopsticks, even after she clarified that she is Korean. As the profession grows slow - ly more diverse, she said, such incidents should decrease. For now, the overrepresentation of white men in positions of authority — as firm part - ners and judges and the like — means they

30 LAW DAY 2023 • CHICAGO DAILY LAW BULLETIN

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