This article was originally published in the July/Aug 2021 issue of San Diego Lawyer Magazine.
By Anne Kammer
Once upon a time, an attorney decided it would be a good idea to write out the following email to opposing counsel and hit the “send” button:
You are a liar and a coward Chad. My motion will prove that. If you want to be a man, any time, any place. Otherwise we will allow Judge Womack to sort it out because you are gutless.
The email wound up described in, and submitted as an exhibit to, a brief filed with the court (not surprisingly, in support of a motion for sanctions). That was just the beginning. The email was reproduced on a slide and used as a demonstrative exhibit years later during a presentation on civility by members of the American Board of Trial Advocates. The email appears in an appendix to an article in the Georgetown Journal of Legal Ethics. The email was reported on by multiple online media outlets, including Above the Law. The email has now been paraphrased almost a decade later in the print and online editions of this magazine. And that is how a decidedly egregious lapse in courtesy and basic human decency became forever enshrined on the internet. The end.
Or, rather, the beginning — of what will hopefully serve as a concise but compelling reminder of the power and longevity of the written word in the legal profession today. Thanks to the proliferation of legal research databases and electronic filing systems, lawyers should anticipate that any publicly filed document may persist online into perpetuity. This modern phenomenon necessitates that attorneys adhere faithfully to best practices in legal writing if they wish to preserve or improve their professional reputations. Civility should be foremost among these writing practices, not only because courts expect or even require it, but because gentility elevates advocacy and discourteousness accomplishes nothing. As Justice Ruth Bader Ginsburg once explained to legal writing expert Bryan Garner, “[i]t isn’t necessary to say anything nasty about your adversary or to make deriding comments about the opposing brief. Those are just distractions. You should aim to persuade the judge by the power of your reasoning and not by denigrating the opposing side.”
Likewise, civility in judicial writing imparts fairness and impartiality, and lends credibility to the justice system. By writing with respect and restraint, judges reinforce the value of civil expression and set the standard for attorneys who appear before them to emulate.
Chief Justice Burger cautioned 50 years ago that “an undisciplined and unregulated profession will destroy itself, will fail in its mission, and will not restore public confidence in the profession.” This is no less true today and underscores the need for attorneys to take care with the written word. Civility in legal writing begets discipline in the profession itself. Members of the bar must strive for civility every time they type out an email, propound written discovery, or file a brief. Members of the bench should bear in mind the virtues of respect and grace every time they draft an opinion or issue a written order. Legal writing takes many forms; civility should be a hallmark of them all.
Anne Kammer (akammer@sandiego.edu) is a career law clerk for a federal judge and an adjunct professor at the University of San Diego School of Law.