Sports separates “winners” from “losers.” And there is also the old adage that it isn’t whether you win or lose, but how you play the game. In other words, good sportsmanship counts—and unsportsmanlike conduct can get you thrown out of the game.
There’s more than winning and losing in the legal arena as well. And the political arena. The foundation of our democracy is a give and take of ideas. We call it civility.
Good Sportsmanship Is Treating Others With Respect
Sportsmanship is analogous to civility. The French and Latin etymologies of the word civility roughly equate to “relating to citizens.” The early Greeks thought of civility as a private virtue and public necessity. Civility—a code of respect–was the glue that held the state together.
Many of us have a feeling that there is, or at least should be, a code of respect in the public arena. The Institute for Civility in Government defines civility as “claiming and caring for one’s identity, needs and beliefs without degrading someone else’s in the process.” So a person exhibits civility when they disagree with someone without disrespecting that person. This is the foundation of healthy dialogue.
How does this translate to lawyers? In representing a client, we want to win their case for them. We advocate on their behalf. But we also have certain rules of engagement as lawyers—we argue the facts and law of the case and do not verbally attack the opposing counsel. Personal insults and invectives are not tolerated. And for the lawyers in government, our political leaders, the same holds.
Unfortunately, as we have written before on this blog, there is a solid perception among Americans that civility in political discourse is plummeting. And the danger here is not only the coarsening of language or lack of polite manners.
Politeness or good manners is not the same as civility. Although impoliteness almost always is uncivil, good manners alone are not a mark of civility. As Professor Stephen Carter of Yale explained in Civility: Manners Morals and the Etiquette of Democracy, politely refusing to serve someone at a lunch counter based on their skin color or cordially advising a female law graduate that the firm does not hire women is not civil behavior.
This brings us to the second aspect of civility as good sportsmanship—being open to the message itself.
Sportsmanship Extends To The Content Of The Message Itself
Part of treating others with respect is being open to the content of their message. As I have written about before, civility is not the same as agreement. Healthy and civil disagreement has been the bedrock of our democracy. There are no absolute winners and losers in this arena.
And contrary to what has been widely depicted on the news or in the media of late, civil disagreement certainly does not equate to stifling, or refusing to listen to, opposing viewpoints. The rash of name-calling and demonstrations shutting down speakers asked to speak on college campuses is an alarming uptick of incivility. Not only are such actions uncivil, but they are dangerous to a healthy democracy. Professor John McWhorter of Columbia University explained in an op-ed piece in the New York Times that in his view, campuses should be cauldrons of bold inquiry and fearless debate. “If anything, colleges owe students turbulence, because it’s from a contest of perspectives and an assault on presumptions that truth emerges—and with it, true confidence.”
The same can be said for the wider world beyond college campuses. In our work lives and public squares, we should welcome an exchange of ideas and perspectives. From such debate will emerge new thinking and innovative solutions to existing problems.
John McWhorter’s observations apply to all people, not just students: “Anybody whose approach to ideas that they don’t like is just to scream bloody murder has been failed in their education.” It hasn’t taught them that history is messy, society is complicated and truth elusive.
In contrast to shouting people down, I witnessed a positive example of dealing with disruptive demonstration a couple years back at a Wisdom 2.0 conference in San Francisco. A panel of representatives from tech companies was seated in chairs on stage in front of a couple thousand people when a dozen protesters burst through the side door. The protesters were shouting and several of them mounted the stage brandishing their signs protesting the high cost of housing because of the influx of tech into Silicon Valley. The panelists remained seated until security personnel calmly ushered the shouting protesters out. When it was quiet, one of the panelists—from Google I think—said, “Let’s take a minute and reflect. Put ourselves in their shoes and empathize with their situation.” I’m pretty sure that moment did nothing to lower rents for those people, but it certainly dispelled a lot of anxiety in the room—and we witnesses could imagine a productive later conversation resulting from the incident.
Sportsmanlike Conduct And Lawyer Civility
And for lawyers, there are limits to espousing or accepting all viewpoints. The rules of the lawyer game extend beyond how we talk to what we talk about. Lawyers have an obligation to uphold the integrity of the legal system. It absolutely is not acceptable advocacy to impugn the integrity of the system by implying a judge is biased or the legal system is “rigged.”
Unfortunately, a rising number of people apparently don’t think twice about questioning someone’s integrity because they have a different opinion. Half of the respondents in the 2016 Allhegeny College survey of civility in U.S. politics found it acceptable to question someone’s patriotism because they hold a different opinion. Lawyers should step up and say it isn’t so.
This tendency to attack the person rather than the opinion will have a chilling effect on our democracy. Our system of government is predicated on encouraging public involvement in our government by the people for the people. I am concerned about the tendency to beat—or, rather, trounce—anyone who espouses a different opinion. We should be embracing different viewpoints, seeking to understand and learn from them. If this trend continues, we all will be losers.