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.
10 LAW DAY 2023 • CHICAGO DAILY LAW BULLETIN
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