Would it come as a surprise that a not insignificant percentage of lawyers are what one might graciously call “aggressive”? For trial lawyers, it’s something of a job requirement. After all, what we do requires us to push pretty hard against the tide, the other side telling us in no uncertain terms that we’re wrong about pretty much everything we do, just as we do the same to them.

But where once this was considered the nature of the job, a study by the Illinois Supreme Court Commission on Professionalism (via David Lat) says it’s because some lawyers and judges are bullies and other lawyers are victims of bullying.

Twenty-four percent of lawyers experienced bullying within the past year, the study found. It was based on responses from more than 6,000 Illinois lawyers who completed a survey commissioned by the Illinois Supreme Court Commission on Professionalism in fall 2023.

The survey was sent out to more than 55,000 registered lawyers in Illinois. Only 6,000 responded to a bullying survey, and as with so many studies seeking over-representation of those who feel aggrieved, the percentage of victims was high. If true, it’s shockingly high, but that, of course, depends both upon whether the study controlled for selection bias and the definitions used to limit what constitutes bullying and what constitutes criticism, oversight and over-sensitivity. Some say that younger lawyers, particularly those weaned on identity politics, do not take well to being informed that they aren’t brilliant and wonderful, and consider a critique that isn’t wrapped in glowing praise bullying.

Specifically, the study found that 38 percent of female lawyers were bullied at work in the past year, compared with 15 percent of male lawyers. Thirty-five percent of Black lawyers, 34 percent of Hispanic lawyers, and 28 percent of Asian-American lawyers were bullied, compared with 23 percent of white lawyers. Twenty-nine percent of LGBTQ+ lawyers were bullied, as were 38 percent of lawyers with a disability.

The study also found that the prevalence of bullying could vary with age. Thirty-nine percent of lawyers between 25 and 35 reported being bullied, compared with 12 percent of lawyers between 66 to 76.

It would come as no shock that younger lawyers would be the victims of bullying at a far greater percentage than old lawyers. But it would also come as no shock that younger lawyers are far more sensitive as to what feels like bullying than old lawyers. So what constitutes bullying, given that “feeling bullied” isn’t particularly informative these days?

[Study co-author Stephanie] Scharf—who holds a Ph.D. in behavioral sciences as well as a law degree—also pushed back on the suggestion of subjectivity to the concept of bullying. She pointed out that in addition to providing a definition of bullying—“inappropriate behavior intended to intimidate, humiliate, or control the actions of another person, including verbal, nonverbal, or physical acts”—the study identified specific behaviors and asked respondents whether they had personally experienced them.

For example, 66 percent of lawyers bullied in the past year reported “verbal intimidation, such as disrespectful speech, insults, name-calling, shouting.” Fourteen percent mentioned “physical intimidation, such as hovering, invading personal space, throwing objects, stalking.”

Disrespectful speech? That’s not particularly informative. Insults? That’s pretty much in the eye of the beholder. Name-calling? Now we’re getting closer to something objectively definable, although more refinement is needed to nail it down. Shouting? Did that happen after the lawyer ignored the first five times they were told to correct bad work in sweet, dulcet tones when there was seven minutes left to file or something else?

“Physical intimidation” is a very different animal, for very obvious reasons. But those same reasons raise the question of whether the vagaries of your boss “hovering” over you as she’s waiting for you to finish a job that needed to be done yesterday is “intimidation” or putting the client’s needs ahead of your incompetence. Granted, throwing objects pretty much crosses the line, but without carving that out, the survey provides no clue how often someone gets the old stapler to the head.

That there are lawyers who are abusive, intemperate, mean-spirited and offensive isn’t in issue. There are, and they are make for bad bosses and even worse judges. But the question isn’t whether they exist, as we all know they do and it’s pretty much impossible to make it through a legal career without meeting a few under unpleasant circumstances. The question is how pervasive it is, and whether it’s any different for lawyers than it is for construction workers. Is it?

“I suspect that bullying in the legal profession reflects a number of factors,” [Professor Tanina Rostain of Georgetown Law] said. “They include the adversarial ethos run amok, when it’s from opposing counsel; pressures on lawyers in solo and small practices and a lack of accountability for their behavior, when it’s from lawyers inside firms; and complete lack of accountability of judges, as to how they behave in courtrooms.”

It’s not clear to me why the opinion of a legal ethics prawf contributes to an understanding of the problem, although many consider both civility and language and thought policing to be a matter of professional ethics. This is particularly prevalent in the Academy and its love child, the ABA, where ubiquitous victimhood is an article of faith to be eradicated rather than a question to be answered. But what can be done about bullying?

The report offered recommendations for addressing bullying. Employers should develop and implement anti-bullying policies, and they should train their employees on anti-bullying policies and procedures. Courts should do their part by adopting standing orders prohibiting bullying and incivility in legal proceedings.

Write “do not bully” one hundred times on the chalk board? The solutions are just as vague and meaningless as the problem, and add yet another layer of interpersonal training to the fabulist regime of how to be a good person according to the unduly emotional. And yet, there are bullies in the law and on the bench. But this isn’t going to make things better.