Friday, August 07, 2009

Lincoln, circuit riding, civility... and sanctions

I live and work in a jurisdiction that is very concerned with civility among lawyers. The idea is that we should be able to hit each other over the head with heavy clubs all day and then stroll off together, arm in arm, and enjoy a restorative tonic (and perhaps a cold compress) and pleasant conversation.

After all, we are told -- repeatedly -- it was done in Lincoln's day.

Indeed, when the lawyers of Lincoln's day were out circuit riding, they opposed each other in the courtroom by day, then ate, drank, and even slept together by night.

No, no, nothing like that: There were few beds for weary travelers in the county seats when court was in session and folks had to double up... or more. I was once told that one man would sleep facing north and his bed partner would sleep facing south. I am skeptical. These were narrow beds. Bathing facilities weren't the best in the 1840s and air conditioning was an opium dream. I think, if I had to double up like that, I'd prefer not having to smell my bedmate's feet all night. Despite what my children might tell you, however, I was not practicing law 160 years ago so I really can't say for certain how these arrangements were worked out.

I do know that there weren't sanctions motions in those days. There was no Rule 11 (the Federal Rule) or Rule 137 (the Illinois rule). There was no discovery at all, except, possibly, in the biggest cases, in the biggest cities, and then only when a separate bill was brought in chancery to compel it.

In Illinois, or at least in Chicago and the other areas where I've practiced regularly, the state and federal courts take a very different view on sanctions: In our state courts, only the most egregious, outrageous conduct gets sanctioned. The licensing authorities are more likely to impose punishment on a miscreant than a judge before whom the miscreant appears. Some attribute this reluctance to the fact that we elect judges here -- and then vote whether to retain them in office thereafter -- and who wants to create a dedicated enemy at retention time?

Some of our federal courts, though, seem to impose sanctions -- sometimes quite heavy monetary sanctions -- as a matter of routine. The problem, of course, is that lawyers squabble -- endlessly, if permitted to -- and somebody seized on the bright idea of sanctions as a means of stopping the noise.

I am reminded of the old Bill Cosby routine: Fathers, he said, aren't interested in justice. Fathers are interested in peace and quiet. And woe betide the kid who disturbs Father's peace and quiet after a hard day of work: Sanctions will be imposed with little regard to who started what, or why.

If we were transported back to Lincoln's day, but with our present rules, I would not want to be in the room above the tavern where the lawyers retired after a hard day of firing sanctions motions at each other: The first one to fall asleep would probably never wake up.

Ah, civility.

1 comment:

Jean-Luc Picard said...

Things have a changed a bit from then.