The Necessity for CivilityAuthor(s): Warren E. BurgerSource: Litigation, Vol. 1, No. 1 (Winter 1975), pp. 8-10, 62-63Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29758176 .

Accessed: 15/06/2014 05:01

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp

.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact support@jstor.org.

.

American Bar Association is collaborating with JSTOR to digitize, preserve and extend access to Litigation.

http://www.jstor.org

This content downloaded from 185.44.77.146 on Sun, 15 Jun 2014 05:01:44 AMAll use subject to JSTOR Terms and Conditions

The Necessity for Civility

by Chief Justice Warren E. Burger Editor 's Note: This article has been adapted from the

text of an address delivered by Chief Justice Burger to the

opening session of the meeting of the American Law Institute in Washington, D.C on May 18, 1971. The

Chief Justice's remarks, although delivered some three and one half years ago, remain an important contribu?

tion to the dialogue on courtroom conduct that is the

focus of the central theme of this issue of Litigation.

Apart from the pleasure of seeing old friends there is a

special satisfaction for me in the annual spring gathering of the American Law Institute. It is a reassuring event. It is reassuring because the very regularity of its pattern has a stabilizing effect in a period when patterns of human conduct are being cast aside by some people as though they were last year's styles of ladies' dresses. While the young ladies vacillate between miniskirts and maxiskirts, American Law Institute holds firmly to course and meets in May.

In the midst of tumult and strife, and particularly in a

city where serious and sober debate often seems to give way to invective, the Institute brings to Washington each year, and especially in 1971, a much needed quality of quiet, orderly, thoughtful and civil discourse. Others

including the news media could, with profit, emulate your example.

Over the years we have all heard vigorous, robust debate in these meetings on difficult and sensitive issues but it has always been in the tradition of the Founding Fathers at Philadelphia. There even the dust and grime and the heat of that Philadelphia summer of 1787?and it was one of the worst if the journals are believed?did not often shake the underlying calm of those remarkable men. They performed their difficult and monumental task within the bounds of civil and civilized discourse. This is all the more notable because they were, as we

know, passionate men, revolutionists, not stoics. They had deep feelings and strong convictions. To measure the

quality of their restraint we need only recall they lived and worked in an era when?not too long after

Philadelphia?one great American, Aaron Burr, shot and killed another great American, Alexander Hamilton, in a duel that had its roots in the political passions of the times.

To speak of the necessity for civility to a body noted for the civility of its debates may seem like speaking to The

College of Cardinals on faith and morals. Yet we know that Cardinals and ministers of all faiths do indeed speak to each other about religion and behavior. Were we engaged in a trial, or even a conventional

legislative exercise here today, my observations might seem to be open to objection as not germane to the

purpose of the meeting. Let me see if I can meet that objection without undue

strain on your tolerance or at least in relaxation of a "strict constructionist" view of your agenda. 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 all that the hand and brain of Man has created in thousands of years, by way of rational discourse and in deliberative processes, including the trial of cases in the courts.

Whether in private negotiation or public discourse, in the legislative process or the exchanges among leaders, in the debate of parties, or the relatively simple matter of a trial in the courts, the necessity for civility is imperative.

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. I hardly dare take the risk of

adding that this may also be relevant to the news media.

I have not had time to research the source but from the

pockets of memory I recall a statement?probably something I read in the memoirs of a diplomat?that if the secret files of all nations could be opened we would find that the politeness, the good manners, the civility of

diplomats and statesmen avoided more wars than all the

8

This content downloaded from 185.44.77.146 on Sun, 15 Jun 2014 05:01:44 AMAll use subject to JSTOR Terms and Conditions

generals ever won. Unprovable or not, I am prepared to believe that.

It is surely important for a gathering of lawyers, judges and law professors to focus our thoughts, for the few minutes I will detain you, on the conduct of members of our profession. Lawyers are granted monopoly to

perform essential services for hire, and it has long been almost an article of faith to us that monopolies are

subject to strict regulation and public accountability for adherence to standards. Today more and more new and

vexing problems reach the courts and they call for the

highest order of thoughtful exploration and careful

study. Yet all too often, overzealous advocates seem to think the zeal and effectiveness of a lawyer depends on how thoroughly he can disrupt the proceedings or how loud he can shout or how close he can come to insulting all those he encounters?including the judges.

A large part of the new litigation involves the rights of the whole of society, or claims of so-called "new

property,'' or new constitutional theories or what some advocates describe as "political cases." At the drop of a hat?or less?we find adrenalin-fueled lawyers cry out that theirs is a "political trial.,, This seems to mean in

today's context?at least to some?that rules of evidence, canons of ethics and codes of professional conduct?the

necessity for civility?all become irrelevant. This is not a wholly new phenomenon. A century ago

the courts of England, now a model of the disciplined, calm civility that is essential to a trial, were plagued by the misconduct and incivility of lawyers and judges alike.

Judges improperly interposed their views on counsel and witnesses, lawyers bullied and baited each other and the adverse witnesses. A great 19th Century barrister, Odgers, writing at the end of that century, said this:

... Of all the mighty changes that have taken

place in the nineteenth century, the greatest change has been in the tone of the administration of both

the civil and the criminal law. The manners of our law courts have marvellously improved. Formerly judges browbeat the prisoners, jeered at their efforts to defend themselves, and censured juries who honestly did their duty. Formerly, too, counsel bullied the witnesses and perverted what they said.

Now the attitude and tempor of Her Majesty's judges towards parties, witnesses, and prisoners alike has wholly changed, and the Bar, too, behave like gentlemen. Of course if a witness is

deliberately trying to conceal the truth, he must be

severely cross-examined; but an honest and innocent witness is now always treated with

courtesy by counsel on both sides. The moral tone of the Bar is wholly different... they no longer seek to obtain a temporary victory by unfair means: they remember that it is their duty to assist the Court in

eliciting the truth. This is due partly to the

improved education of the Bar; partly no doubt to the influence of an omnipresent press; but still

more to Her Majesty's judges.

As Odgers suggested, the role of the press is a crucial one. Sometimes their highest service is to reflect precisely the conduct of the brash and swaggering lawyer or

intemperate, blustering judge. The atmosphere of incivility described by Odgers in

1900 pervaded the courts of England during most of the 19th Century. Conduct in their Parliament was much the same. In this country we were not immune and history records numerous episodes of physical attacks by

members of Congress on their fellow members. Pistol

whipping and caning escalated from verbal attacks. News media were intensely partisan and vicious and it was not uncommon for political leaders to horsewhip newspaper reporters.

Today, and increasingly in the past few years, we witness signs of a revival of some of this kind of incivility as well as violence. Speakers are shouted down or

prevented from speaking. Editorials tend to become shrill with invective and political cartoons are savagely reminiscent of a century past.

A few weeks ago the distinguished former Solicitor General of the United States, Archibald Cox, now a Harvard professor, was met with this phenomenon at a

public meeting of Harvard students. The New York Times, not noted for lurid or extravagant reporting, states?and I use the Times language?

"Mr. Cox faced a screaming chanting audience" that refused to hear him out. I suspect that Mr. Cox departed from his prepared lecture when, again, according to the Times, he said to his students: "If this meeting is

disrupted then liberty will have died a little. Freedom of

speech is indivisible. You cannot deny it to one man and save it for others." If Mr. Cox will let me plagiarize him a

little, civility is also indivisible; we cannot abandon it ourselves and expect it to be practiced by others. Now, I am overlong in making my case for the relevance of all this to a gathering of the ALI.

I submit that with a gathering that includes some of the leading scholars, teachers, lawyers and judges in the land few subjects could be more relevant to discuss than

9

This content downloaded from 185.44.77.146 on Sun, 15 Jun 2014 05:01:44 AMAll use subject to JSTOR Terms and Conditions

the necessity for civility in the resolution of litigation in a civilized society.

I suggest this is relevant to law teachers because you have the first and best chance to inculcate in young students of the Law the realization that in a very hard sense the hackneyed phrase "order in the court" articulates something very basic to the mechanisms of

justice. Someone must teach that good manners,

disciplined behavior and civility?by whatever name? are the lubricants that prevent lawsuits from turning into combat. More than that it is really the very glue that

keeps an organized society from flying apart. Many teachers of law have thought teaching these

fundamentals was not the function of law schools and law teachers. Many good friends of mine in the law schools, over the past 20 years or so, have said to me, "We are teaching students to think?we are not running a trade school." But civility is to the courtroom and

adversary process what antisepsis is to a hospital and

operating room. The best medical brains cannot outwit soiled linen or dirty scalpels?and the best legal skills cannot either justify or offset bad manners. With all deference, I submit that lawyers who know

how to think but have not learned how to behave are a menace and a liability, not an asset, to the administration of justice. And without undue deference, I say in all frankness that when insolence and arrogance are confused with zealous advocacy, we are in the same trouble the courts of England suffered through more than a century ago. Today English barristers are the

most tightly regulated and disciplined in the world and nowhere is there more zealous advocacy.

I suggest the necessity for civility is relevant to lawyers because they are the living exemplars?and thus

teachers?every day in every case and in every court and their worst conduct will be emulated perhaps more

readily than their best. When a lawyer flouts the standards of professional conduct once, his conduct will be echoed in multiples and for years to come and long after he leaves the scene.

Finally, civility is relevant to judges, and especially trial judges because they are under greater stress than other judges, and subject to the temptation to respond in kind to the insolence and bad manners of lawyers. Every judge must remember that no matter what the

provocation, the judicial response must be judicious response and that no one more surely sets the tone and the pattern for courtroom conduct than the presider.

It may seem strange to some that such obvious truths as these should be uttered. But perhaps our failure to state them more often and practice them more faithfully has brought us to the need?the need as I see it at least?to discuss so simple and elementary a subject as the necessity for civility in all the affairs of men?and

especially men of the law. I hasten to add that these somewhat dismal recitals

about our profession should not dismay us for long. We remember that more than a century ago and in a time of

great national crisis, this country survived the

Know-Nothings and other political psychopaths of that

day, and we Americans are resilient enough to survive our 20th Century version of Know-Nothingism.

The legal system that waits to train its ministers how to act and behave professionally until they are

chronologically mature, is in much the same situation as

parents who wait to try to teach their offspring table manners and other habits until after they reach voting age?even the new voting age! It can't be done at that

point. The essence of the matter is that if the rights of

individuals or society as a whole are to be protected, it can be accomplished only in a judicial environment of calm, orderly civility. This is true, as we know, whether the action be a simple private claim for debt or damages, a class action for a large group or an effort to control

pollution of natural resources. It should hardly be necessary to say that such an atmosphere is especially important in a criminal case.

The early American experiences with the lack of

civility in the legislative process led Thomas Jefferson as a young man to evolve a manual of decorum and you may find it of interest to recall some of what he provided for the legislative process:

. . . [that] all public functionaries are essentially invested with the powers of self-preservation; that

they have the inherent right to do all acts necessary to keep themselves in a condition to discharge the trusts confided in them [including] . . . the right of

punishing contempts . . . [as] every court does the same; that if we have it not, we sit at the mercy of

every intruder who may enter . . . and by noise and tumult render proceeding in the business

impracticable. . . .Id., 703.5

and again: No person is to disturb another in his speech by

hissing, coughing, spitting, speaking or whispering to another or stand to interrupt him; nor to pass between the Speaker and the speaking member.. . .

Id., 717.12

Jefferson, I might add, can hardly be considered an

enemy of free speech or assembly or the right of petition. Jefferson's manual drew heavily on centuries of

accumulated experience of the English Parliament and the Colonial experience and in turn his manual became a basis for the Standing Rules of the Senate and Rules of the House. A brief sample from the Senate Rules will suffice to make the point:

No Senator shall interrupt another Senator in debate without his consent. . . . Id., 19.1

No Senator shall, directly or indirectly, by any form of words impute to another Senator or other Senators any conduct or motives unworthy or

unbecoming a Senator. Id., 19.2

There are other detailed and specific rules of conduct and violation of these rules carries the risk of censure and we have seen that power destroy Senators who broke the Rules.

Against this background it is curious that there has been no comparably definitive code of personal behavior to insure civility in courts. More serious perhaps is the

(Please turn to page 62)

10

This content downloaded from 185.44.77.146 on Sun, 15 Jun 2014 05:01:44 AMAll use subject to JSTOR Terms and Conditions

(Continued from previous page) because the disclosure order would

irreparably affect the other pending cases and the questions it raised were of first impression and general importance.

As to the existence of the attorney client relationship, the court ob? served that it was not a question of "fact," but a matter of contract which was more properly character? ized as a question of "law." Labels aside, however, the appellate court rejected as improper the trial court's

assumption that an attorney can only owe obligations to one client and that

ensuing privileges are held unilater?

ally. In the insured-insurer relation?

ship, an attorney has two "clients" who jointly hold privileges arising from their "loose partnership, coali? tion, or alliance directed toward a common goal." It may be that counsel's primary loyalty is to the insured, but with respect to the carrier, he has at least a fiduciary duty and a client relationship as well. And with regard to work product,

that privilege is designed to protect the attorney's privacy required for his effective service to the joint liti?

gating team. Thus, the doctor's alleged waiver

could not bind the carrier with respect to either privilege. Ac?

cordingly, the American Mutual court set aside the trial court's broad disclosure order, pending pro? ceedings carefully designed to test but preserve during testing the

validity of each privilege asserted as to each item in the subpoenaed files.

_All About Litigation_ (Continued from page 2) has been designed as a counterpart to Trial Balloon, with the contributor

being a member of the judiciary. By providing judges who decide cases an

opportunity to communicate with

lawyers who try them, the editors

hope to establish an informal

dialogue on problems that those two central characters in the litigation process have in common.

4. Legal Lore: This cohimn will

permit litigators to join in the current national pastime?nostalgia. It is designed to recall significant trials of the past or important trial

lawyers in our history. Our adversary system is rich in legal lore and the editors hope some of that lore can be shared through this column.

5. Trial Notebook: This is, essen?

tially, a how-to-do-it column. Each

installment will isolate one or two

problems that the advocate confronts in the litigation process and suggest practical solutions to those problems. Because we expect our readers to range from uninitiated litigators to

experienced trial lawyers, the prob? lems to be discussed will range from the most basic to the most difficult.

6. Advance Sheet: This column will discuss recent decisions of

special importance to litigators and the litigation process. Because

Litigation is published quarterly, this column cannot be a compre? hensive survey of all new decisions. Rather, it will attempt to isolate decisions of special significance and to highlight those decisions that

might not otherwise receive the attention they deserve.

7. Litigator's Bookshelf: This column will review new books of

special importance to trial lawyers. It will appear only when books of that nature are called to the attention of the editors.

This, then, is what a reader can

expect to find between the covers of each issue of Litigation. The editors believe that, in design, style and content, Litigation will reflect the interests and serve the needs of

members of the Section of Litigation. We encourage readers to com?

municate their criticisms and their

suggestions for themes, articles, and contributors. The editors can be satisfied that the journal they have created is worth the time and effort involved only if the readers make their views known.

_The Necessity for (Ivility_

(Continued from page 10) lack of effective enforcement mech? anisms of even basic standards of

general acceptance. But a start has been made in standards adopted by the ABA in the past two years1 and this is a good beginning. So we see that the profession itself, through the

organized bar, has been in default.

Judges have blamed bar associations and bar associations blamed judges and until recently law teachers have abstained. This area?the regulation of the legal profession?is one of the

large pieces of unfinished business and the longer we wait to deal with it the more difficult the problem will become.

I submit that we must make some basic decisions in terms of allocating the responsibility for regulating what is inherently a contentious profession and then place rigorous powers of

discipline wherever we place the

responsibility?whether it be in the courts or in the profession. Lawyers, judges and law professors must see that an undisciplined and unreg? ulated profession will destroy itself, will fail in its mission, and will not restore public confidence in the pro? fession.

I hope that preoccupation of the ALI with its other burdens will not

prevent active pursuit of this un? finished business.

Having said this I should, in all fairness, say what we know to be true, that the overwhelming majority of lawyers and judges comply with basic standards of good manners and

professional decorum?the civility that is the barrier between a court? room and a barroom brawl. We know that only a tiny fragment of reckless, irresponsible lawyers are

guilty. Some few of them seem bent on destroying the system and some are simply illmannered and un?

disciplined noisemakers. But here

again we return to the concept so

eloquently stated by Mr. Cox to the Harvard Students?and I para?

phrase him again?we cannot toler

62

This content downloaded from 185.44.77.146 on Sun, 15 Jun 2014 05:01:44 AMAll use subject to JSTOR Terms and Conditions

ate incivility in a few without encour?

aging it in many. So as the Institute proceeds with

its important business, I urge that we never forget the necessity for civility

as an indispensable part?the lubri? cant?that keeps our adversary system functioning. If we want to

protect that system we must firmly insist on the lubricant.

'ABA Code of Professional Responsibility (1970); ABA Criminal Justice Project, Stan? dards for Prosecution and Defense Functions; American College of Trial Lawyers, Report on

Disruptive Trial.

Opening Statement (Continued from page 1) pointed to the exorbitant cost of legal staffing and investigation in the

Watergate matter as well as the high price both of prosecution and defense. Unquestionably a later tally will be computed to include the total cost of prosecutions and appeals that

may continue ad infinitum. The legal bill will undoubtedly be extravagant.

Well, lawyers don't come cheap, and by the battalion the price may be offensive to most anyone. But may I remind that the price of troops is also dear. It may be presumptuous to

suggest that lawyers somehow

replaced "troops in the streets"? and yet?

On Justice in Administration

While the response to Justice

Burger's mandate stimulated an

outpouring of articles and speeches aimed at the training of advocacy, I could not help but wonder whether this were nothing but an exercise in

nostalgia. For, while the speeches continued, the assault on the per? quisites of the trial lawyer continued to run its course. California joined the trend with the abolition of voir dire examination. The techniques of

summary disposition were enhanced in our federal courts and oral argu?

ment restricted at every turn. The civil right to jury trial appeared increasingly vulnerable to reform.

For some reason, I recall the

unforgettable character of Gene Gant in Thomas Wolfe's Look Homeward, Angel, following a scholar's pursuits at Oxford and

being advised by his don that at Oxford there was "no room" for "useless enthusiasms."

I see a parallel. It is not the restriction of civil juries from twelve to six that is of concern so much as it is the intuitive suspicion that those

pronouncing this reform regard the

jury process as "a useless enthu? siasm." Without question the jury

process, the tradition of the jury voir dire, and the use of oral argument at all stages of the process is hardly efficient. It may represent a luxury which modern management tech?

nique cannot afford. Yet, I think not.

I have made the undoubtedly cynical observation that the term "administration of justice" might well be a non sequitur. It was the Greek philosopher Pythagoras (an arithmetic teacher by trade) who

suggested that justice is a "square number," a philosophy which the docket "overlords" might grasp to bosom.

I dissent. I do not think the type of

justice we seek in the civil resolution of controversy by the trial process is

susceptible to mathematical calcula? tion. It is inextricably irregular, random, contradictory, subject to excess, and inevitably inefficient. It seems thus inevitably at odds with the ends of administration.

Nowhere is a more striking instance of the triumph of adminis? tration over advocacy suggested than

by the history of the appellate "screening" procedures instituted

(ex parte, I might add) by certain of our federal circuit courts. With due

respect to its reputation for judicial excellence, the Fifth Circuit is the

acknowledged leader, denying oral

argument in approximately 60

percent of appeals filed with it in fiscal 1973. And, of those orally submitted, 11 of 12 were restricted to abbreviated argument time.

I do not think these restrictions stem from docket congestion so much as from judicial impatience, based on experience with dull and

inadequate argument. They betray, perhaps, a basic distrust of oral

advocacy. I remain committed to the

proposition that judicial efficiency can be achieved without sacrifice of the advocate's right to speak?and be heard. There remains a case, I

believe, even for the ineffectual

advocacy of one's cause.

The Rising Price of Justice Excesses of administration are not

the exclusive province of the

judiciary, needless to say. I observe with some regret the trend where the

management of complex litigation has become so costly that the

ordinary consumer may be "priced out" of the market for civil justice. Much attention and work of the

organized bar has been directed to

the delivery of legal services for the

economically disadvantaged. I point my finger here not at the

disadvantaged, but at the fact that the trial process cannot cost out to

provide trial redress for any but the most affluent. And even there the

golden goose is tarnished.

Last summer I learned of a local

accounting firm in a major city involved as a defendant in a

securities class action being advised

by its counsel that it could not be defended for less than $180,000, a sum which in and of itself would

nearly bankrupt the firm. And, I wonder with sadness where the

system is going.

I think these trends are worthy of comment. I see first a veritable obsession with discovery in the

pre-trial processes. I see too a class of highly sophisticated trial lawyers who have become managers really, as opposed to advocates, in a system where substance is increasingly displaced by form.

Surely there must be a way to offer the small business, the professional man and others access to the resolution of a securities case, patent controversy, or a class action without

confronting a 500-hour commitment

just through the initial motion stage of a federal proceeding. Perhaps our

refinements of the dilatory processes and the commitment of legal resources thereto have become so extended as to pose some degree of

jeopardy to the system as a whole. Let us all consider.

63

This content downloaded from 185.44.77.146 on Sun, 15 Jun 2014 05:01:44 AMAll use subject to JSTOR Terms and Conditions