No Paradise to Regain: Comments on Russell G. Pearce and Eli Wald, The Obligation of Lawyers to Heal Civic Culture: Confronting the Ordeal of Incivility in the Practice of Law

This piece responds to Russell G. Pearce and Eli Wald, The Obligation of Lawyers to Heal Civic Culture: Confronting the Ordeal of Incivility in the Practice of Law (presented at the 2011 Altheimer Symposium, UALR-Bowen School of Law). It agrees with their view that arguments from "relational self-interest" (viewing self interest as necessarily connected to the interests of others) can address issues of incivility in the American politics and the practice of law in ways that other arguments cannot. It disagrees with them on a few specific points: 1. The so-called Ordeal of Incivility in American politics, culture and law practice is not particularly a new thing; 2. Claims that society as a whole used to be more civil ignore that the state of society at these earlier times excluded large segments of society from civic participation; 3.Claims that the practice of law has recently become less civil ignore the fact that most of the tools of incivility (except discovery abuse) are old--but this piece admits that the fragmentation of specialties such as torts and criminal law into plaintiff (or prosecution) and defense bars does make seeing both sides of issues much more difficult, and 4.any definition of civility in the practice of law must allow for vigorous cross-examination and closing argument (which would be uncivil if done outside of the courtroom context, and even in that context appear uncivil to non-lawyers) and must allow litigators to argue for legal positions that many people in society might consider uncivil and disruptive.