Civility Is Our Compass to Navigate Difficult Situations

The Bencher  |  July/August 2023

By Douglas J. Cummings Jr., Esquire

The hour was late. The time by which filings should occur passed hours ago. Faced with the difficult decision of permitting nothing to be placed on the docket—despite my having represented on the record that the parties would cooperate and prepare a joint status report—or keeping my word and communicating with the court on behalf of my expecting clients (albeit without the input or consent of opposing counsel) I chose the latter.

While evaluating the alternatives and preparing the report regarding what had become an embittered, shareholder derivative lawsuit, my cell phone buzzed relentlessly. The text messages from my tween daughter arced from hopeful questions regarding my arrival time at the restaurant, troubled observations about my wife being uncertain whether to order, to ultimately reporting my family was on their way home. The final vibration bearing a hollow message, something about “to-go.”

I missed out on spending time with people I love at one of our favorite eateries because the attorney representing my clients’ adversaries had not kept their word: “will let you know something later today,” or so read the email earlier that day.

Despite multiple attempts on my part to constructively communicate over the course of several days in advance of the deadline, including pleading for a call-back after my having undertaken the most recent round of drafting, I had been “ghosted.”

Earlier in my career, I believed it my duty to include within my public filings biting criticism, replete with detail and searing commentary, of how the conduct of opposing counsel was oppressive, disrespectful, and unprofessional. This is, or so I had thought, the retribution deserved. But, I have reached a point in my personal and professional development where I choose to instead admonish with friendship. (In the interest of full disclosure, in the process of subduing my passions, I did release at least one growl of frustration within the confines of my office.)

After identifying the communication challenges with concision, referencing opposing counsel as “my colleague representing defendants,” the report focused on substantive issues and requested a court conference in advancing the greater purpose of progressing the litigation toward resolution. I reviewed the submission before filing, ignoring the rumblings of my stomach, and was pleased with the civility demonstrated.
It is an oft-cited maxim that civility is of paramount importance to the practice of law. This is not empty calories. When attorneys endeavor to disparage the other side it distracts attention from what matters most: the law, facts, analysis, reason, and logic (public policy, too, at the appellate level).

Accordingly, civility establishes the only frame within which meaningful proceedings may occur. But, it has occurred to me, perhaps later on my journey than it should have, that there is another reason why civility serves as the compass upon which we may rely for direction when navigating difficult situations.

Let us consider our chosen profession as a singular whole. If we subscribe to a philosophy of unity, then it follows that degrading another attorney, by way of incivility, is the degradation of ourselves. Support for the benefits of such a holistic approach, borrowed from outside the practice of law, is plentiful. Three examples of the power of viewing our colleagues as an extension of ourselves follow for your consideration.

The first can be found in the poem by John Donne titled “For whom the Bell Tolls.” One of the verses speaks directly to our interconnectedness: “No man is an island.” Interpretations of this work often gravitate toward another verse: “Each man’s death diminishes me, [f]or I am involved in mankind. Therefore, send not to know [f]or whom the bell tolls, [i]t tolls for thee.” This has been interpreted not just as a recognition of our own mortality, but as evidence that the collection of us is something bigger; the loss of humanity in one of us, is a loss suffered by us all.

A second example of the enlightenment of this approach can be found in a speech from former President Lyndon B. Johnson, when on March 15, 1965, he called for equal voting rights. “For with a country as with a person, what is a man profited if he shall gain the whole world and lose his own soul.” In evocating the Bible, President Johnson pleaded for a unified outlook of all Americans, regardless of exterior qualifications, with the right to vote. Said differently, the failure to allow one person this right is a failure of the whole of America to be righteous.

A third example is one of George Washington’s Rules of Civility: “Wherein you reprove another be unblameable yourself; for example is more prevalent than precepts.” Here, the clear message is that, as we must acknowledge ourselves imperfect, so too must we acknowledge this same imperfection in others. When contemplating the underpinnings of this rule, it becomes apparent that this is because we are part of the same, unified whole of humanity—one nation, under God, indivisible, with liberty and justice for all. (I wish to take a moment to honor a past president of the American Inns of Court, Judge Kent A. Jordan, who has cited these rules in at least one issue of The Bencher and is an esteemed member of the Richard S. Rodney American Inn of Court.)

It is easy to understand how in our current society, taking to social media and engaging in less-than-civilized disagreement to the belittlement of those who think differently requires an almost exhausting effort to exercise civility. But let us not draw a false equivalence to the nobility of our professional interactions and the vitriol demonstrated in 280 character waves of endless back-and-forth.

We, as officers of the court, having chosen to dedicate our working lives to the preservation of democracy, are bound to more important duties. We must unify our civic and our civil behavior for the benefit of something larger and more important of which we as individuals comprise but a part.

We shall not be so naïve as to think that difficult situations will not arise during the practice of law. Rather, expecting that they will, let us be confident and heartened that we shall overcome the unforeseeable challenges on the horizon by allowing civility to guide our zeal without degrading our profession and ourselves. For a loss in one case, if it is just, is appropriate, but a loss of our humanity in seeking victory has greater implications and affects us all.

Douglas J. Cummings Jr., Esquire, is the managing partner of DCummings Law LLC in Hockessin, Delaware, where his practice focuses on litigation before the Court of Chancery, real estate transactions and wills, trusts, and estate planning. He is a Barrister member of the Richard S. Rodney Inn of Court and alumnus of the American Inns of Court National Advocacy Training Program.