A few weeks ago, I read an article from the ABA Journal, “Posner Opinion Tosses Judge From Case Partly For His ‘Tone Of Derision,'” about how Judge Richard Posner of the 7th U.S. Circuit Court of Appeals reversed a district court judge’s dismissal of a sex discrimination case.
According to the 7th Circuit opinion, the district court’s decision was riddled with numerous procedural irregularities in the interpretation of the rules and case law and thus warranted a reversal. Perhaps more surprising is the 7th Circuit decided that the case should be before a different judge due to the “abruptness and irregularity” in the handling of the case and the “unmistakable tone of derision that pervades [the] opinion.” At one point in the lower court opinion, for example, the trial judge described the plaintiff’s action as being “hoist by her own petard,” which the appellate court found “incomprehensible”
I was reminded of this article last week during the professionalism course for newly admitted attorneys. One of the candidates for admission approached me and said he has been practicing for a few years in another jurisdiction and wished the other jurisdiction provided a similar class. He also said the course opened his eyes to the importance of professionalism and civility in our profession.
The candidate was particularly impressed by the course instructors and noted each appeared to be genuinely invested in the course. Based on my interaction with, and observation of, many of the instructors, I think this candidate was impacted by how the instructors communicated. Each of the instructors spoke in a manner that was easy to relate to and made the subject matter of their presentation meaningful to the candidates. Their tone made the impact.
As lawyers, our ability to communicate effectively is one of our most important skills. A speaker’s tone is an important aspect of her communication skills and should never be overlooked. The 7th Circuit opinion provides us with a teachable moment and valuable reminder that tone matters both inside and outside the courtroom.