Standard #1 – Principles that Span the Generations
by Judge Ann Boyden
Not long ago, my fifteen-month old grandson, Juddy, was helping me make my bed. Each step of the process was a big deal. As I smoothed a wrinkle from the sheet, he cheered a supportive, “Good job!” When I handed him a pillow to plump, he beamed a “thank you.” When the task was finally completed, he threw his chubby arms straight up in the air and while pulling them down, shouted “Yes!!”
I smiled at how just a little encouragement can transform mundane routine into a pleasant occasion. I was reminded of how often we use childhood behavior, good or bad, to illustrate the type of behavior expected from members of the Bar. We recognize that courteous, supportive behavior is taught at a young age. We frequently compare lawyers in a courtroom to youngsters in a schoolyard.
Such metaphors serve well to illustrate the basic, fundamental nature of principles of civility. But they fall short in addressing the depth that the Utah Standards of Professionalism and Civility are intended to reach. We are no longer children at recess. We are educated adults, engaged in the legal profession, appearing before judicial authority. Our conduct should exhibit that mature level of development.
The opening phrase of Standard #1 succinctly states a lawyer’s job: “[L]awyers shall advance the legitimate interests of their clients.” The remainder establishes parameters in which that job must be done: “Lawyers shall treat all other counsel, parties, judges, witnesses, and other participants in all proceedings in a courteous and dignified manner.”
These parameters do not limit lawyer conduct. Instead, they provide a framework that enhances a lawyer’s effectiveness. It works like this.
A lawyer advances a client’s interests by persuading the trier-of-fact to the client’s position. The rules require that attorneys only argue facts in evidence. Whenever argument shifts from the facts to an attack on opposing party or counsel; by rule, that part of the argument cannot even be considered.
Also, such conduct is a flag to the judge or juror considering the case that the proponent’s argument is not strong enough to stand on its own. Often enough, one has the weaker argument. No need to concede it by treating the opposition in an undignified manner.
The same analysis applies when dealing with a witness. The lawyer’s job in examining a witness, in court or deposition, is to elicit facts and information that will advance the client’s interests. Attempts to demean or intimidate a witness are not part of a proper examination. They diminish the credibility of the examiner, not the examinee. They do nothing to promote a client’s case.
The justice system is comprised of various players who play essential roles. The system works when each player fulfills each’s responsibilities. It is not a caste system. No hierarchy of importance is assigned. Our mothers may be proud, but that is the extent of deference entitled by position.
A lawyer’s treatment of all participants in all proceedings directly affects that lawyer’s ability to advance client interests.
For instance, the court reporter is such a participant, with the specific responsibility to maintain a complete, accurate record. Often, in the intensity of legal proceedings, participants will speak too fast and over other speakers. The reporter must then stop the proceeding and ask for accommodation to assure a proper record.
As a judge, I observe attorneys respond in one of two ways. In one, the attorney stops, understandably frustrated at the break in momentum, but remains dignified. With a nervous smile, the attorney clearly restates what was missed by the reporter, and proceeds.
In the other, the attorney responds with indignation; lecturing the reporter as to who is the attorney and who is the record-keeper. This attorney may even ask me, in front of the jury, to repeat the same arrogant admonition. There is little question which attorney better advances client interests.
Court interpreters are also participants, working under difficult pressure to assure non-English speaking parties are able to fully participate in court hearings. Recently, after a particularly difficult calendar, an interpreter stepped to the clerk area of my courtroom, to have her time-voucher signed. I motioned to her, so that I could thank her for the exceptional effort she had given. She hesitated, and then expressed relief. Apparently, the only other time she had been motioned forward by a judge, she was scolded for her choice of sweater!
It is important to express specific gratitude and encouragement to one another. All are buoyed and strive to work harder.
Bailiffs and court clerks are essential components of the system. There are as many different relationship styles here as there are clerk-bailiff-judge combinations. But in each case, these people determine to some extent an attorney’s ability to communicate with the Court. They can be an attorney’s advocate or adversary. The result is determined by how courteously and professionally they are treated.
Cultivating principles of civility in all our professional interactions not only makes lawyering more effective, but more satisfying as well.
Ours is a confrontational and adversarial job. Daily, we deal with situations that are harsh, tragic and shocking. One of the pleasant parts of the work is the personal relationships we form.
The days are too long and the work too hard, to be constantly angry, offensive or offended. Gracious conduct towards the others in our profession and in the broader institution in which we all work promotes a support system that deepens job satisfaction.
A worn document hangs on the wall behind me. It was meticulously penned to my grandfather upon his retirement after twelve years on this District Court bench. It is dated November 14, 1940, and signed by his bailiff, clerk and reporters. It reads in part:
No judge could have been more thoughtful or helpful to court officers than you have been. We shall always remember your kindness to us.
The professional behavior contemplated in Standard #1 is not mere surface compliance with etiquette rules because a judge is watching. It entails deeply-rooted, behavioral patterns that exhibit genuine respect and esteem for those we deal with in our professional lives.
From my retiring grandfather to the little grandson who is anything but, principles of civility do not change from generation to generation. They are and should be hallmarks of our profession in every decade.