Reviving Civil Discourse: An Opportunity for Lawyers

Last week, The Santa Barbara & Ventura Colleges of Law hosted a debate on whether California voters should repeal the death penalty.

Robert Sanger, COL adjunct faculty member, experienced trial attorney, and criminal law specialist, argued in support of repeal. Senior Deputy District Attorney for Ventura County Richard Simon argued the opposing side. It was a substantive, respectful, and civil debate that provided those in attendance an understanding of the underlying policy distinctions between the two propositions.

It was refreshing to watch. The audience heard two men present their positions with passion and force, marshaling evidence, discussing policy and grappling with the underlying question “is the death penalty justice or revenge”? There were no personal insults, no off-topic answers or calculated sound bites that could be edited into ads the next day. They even found an area of agreement; both acknowledged the danger of using “jailhouse” informants in death penalty cases.

During the debate, Mr. Sanger and Mr. Simon modeled the conduct necessary to the proper functioning of our democracy: civil discourse. The National Institute for Civil Discourse in its newsletter Frankly Speaking, defined civil discourse as a “robust, honest, frank and constructive dialogue and deliberation that seeks to advance the public interest.”

National Public Radio journalist Diane Rehm defined it more simply as: “Our ability to have conversation about topics about which we disagree, and our ability to listen to each other’s perspectives.”

Civil discourse includes not just the ability to speak respectfully but to listen to an opposing side, to find common ground and to move forward in productive ways. Unfortunately in American politics it is increasingly uncommon. Citizens are caught on opposite sides of an ideological divide. In 2014, the Pew Research Center issued a report that found “Republicans and Democrats are more divided along ideological lines – and partisan antipathy is deeper and more extensive – than at any point in the last two decades.”

The chasm is widened by the “ideological echo chambers” where a growing number of Americans now live, choosing media outlets, friends, and residential communities that share their viewpoints. Even the internet, once described as the new “town square for the global village of tomorrow” is contributing to the polarization by using algorithms to create “filter bubbles” that steer readers towards information consistent with their ideological views.

Lawyers can help bridge the divide

In 2011, the American Bar Association House of Delegates urged the profession “to set a high standard for civil discourse as an example for others in resolving differences constructively.”

“Lawyers play many roles in modern society,” it reads. “We serve as advocates for clients, as members of our community boards, and as judges sworn to uphold the rule of law. We are career public servants and elected officials, political advisors and media experts. We are even journalists, business leaders, and sports figures. In all these walks of life and more, lawyers are leaders in our society. This gives us a unique opportunity, and obligation, to make important contributions at important times.”

“Now is such a time,” the ABA report continues. “Contemporary political discourse continues to spiral to unprecedented levels of acrimony and venom, thereby endangering not only the quality of decision making about important public issues, but also the very lives and safety of public servants and citizens. A true and free democratic society cannot long endure in such a toxic environment. It is time for lawyers as leaders in our society, and the ABA as the leader of leaders, to stand and take action.”

A natural role for the legal profession

Lawyers must engage opposing viewpoints everyday as they try to work with opposing counsel to find a solution that is best for their client. While Mr. Sanger’s and Mr. Simon’s performance may be unique in the current political environment; it isn’t unique in the legal profession. Both men are seasoned trial attorneys, familiar with their ethical obligations to their clients, to the court and to the justice system as a whole.

In California, these duties include civility: “As officers of the court with responsibilities to the administration of justice, attorneys have an obligation to be professional with clients, other parties and counsel, the courts and the public. This obligation includes civility, professional integrity, personal dignity, candor, diligence, respect, courtesy, and cooperation, all of which are essential to the fair administration of justice and conflict resolution.”

Speaking up for the truth

Lawyers have a duty of candor, to marshal arguments based in law and fact. When concerns about a “rigged election” were raised, Chris Ashby, a prominent Republican campaign finance election lawyer, stepped forward to educate the public about our election system. First, his law firm took to social media and in a “tweet storm” of 33 140-character tweets explained the checks within our election process that makes “rigging” nearly impossible (and also brilliantly displayed how to write concisely).

He wrote articles to reach a broader audience, explaining the difference between “voter fraud”—which he believes does exist—and a “rigged election,” which he rejects. When asked why he decided to speak on this issue, Mr. Ashby stated: “Well, I think as a lawyer, and particularly for me as a Republican lawyer, I have an obligation to the rule of law and to our system of laws, and the voting system is one part of that.”

Lawyers have an opportunity, even obligation, to revive civil discourse in our society. Simply by doing what lawyers do every day, Mr. Sanger and Mr. Simon showed the public the power of a civil debate. As one person commented on the Facebook feed: “Outstanding! What a civilized and thoughtful debate—showing the politicians how it should be done!”

The Colleges of Law hopes to create more opportunities for the Santa Barbara and Ventura bench and bar to educate the public on substantive issues and to revive civil discourse within our communities. Learn more about our programs and find out about upcoming events.