Bad language has become a campaign issue, thanks to “the Donald’s” propensity to let swear words fly. Donald Trump’s potty mouth has been hailed as an example of his “New York values,” which according to his competitors in the race for the Republican nomination are incongruent with the sensibilities of evangelicals and other true conservatives. Cognizant of the blowback, Trump himself has all but promised to tone it down going forward, if only to demonstrate his ability to act presidential. While some of us may be amused by the role of cursing as a marker of presidential bona fides, others must be lamenting the depths of inanity that have accompanied this presidential nomination cycle.
What the issue of Trump’s cursing illustrates, however, is that different audiences can have very different reactions to the use of foul language. While the current hullabaloo over Trump has shown that a candidate’s propensity for profanity can have campaign repercussions, the impact of cursing is not limited to the political arena. While I am personally not very familiar with the speaking habits of doctors, for example, I would probably consider it off-putting if my physician decided to use my yearly physical as an opportunity to show off his potty mouth. Similarly, use of foul language in court, whether by a lawyer, client, or witness, would almost surely result in negative consequences of some sort for the person who chose to pollute the sanctity of the courtroom with gutter language. In short, there remain situations where cursing will not be tolerated, or looked upon kindly.
It is interesting, however, that lawyers who would never dare to swear in a courtroom have no compunction about letting “bad words” fly in the office. For a measurable segment of the legal community, language that would be improper in polite company is wielded with impunity in a “professional” setting — the law office. While those with puritanical tendencies may consider the presence of prodigious profanity in legal offices unprofessional, there are actually some benefits to cursing that may explain its pervasive use.
Before considering the benefits of a well-timed injection of profanity by a lawyer into a discussion, a word of caution. In my experience, junior lawyers in particular need to be very careful about using foul language — especially when in the company of senior attorneys eager to pounce on any suggestion that the younger lawyer is too “raw” or “lacks the social graces” to advance in the legal world. Do not give ammunition to those who are more than willing to use it against you. If that means watching your words, so be it.
A good rule of thumb is that the freedom to curse is something earned by a lawyer over time, and best done before peers of equal or lower stature. Put another way, if you are lead trial counsel that just won a bet-the-company case, feel free to let some F-bombs of victorious exaltation fly, even in the presence of the client. But if you are a service partner (much less an associate) meeting with the client to handle some discovery requests, better to watch your mouth — unless you are talking about opposing counsel. Then curse away, lest you are accused of enemy sympathies.
As with anything in legal practice, knowing when and how to curse is a skill that is developed over time. Smart lawyers know that “letting their guard down” and spicing up interactions with their team via some choice curse words can help build camaraderie. Likewise, swearing can be an outlet to help reduce some of the stress of challenging matters or situations. Even the most genteel lawyers have been known to unleash some profanity, particularly at times of great stress or in the wake of an emotional result.
Even if a lawyer chooses to curse, and has earned the right to do so, there is still a need for caution. If a lawyer is leading a team of other lawyers or staff on a particular project, and chooses to curse for emphasis, it is important to be aware of the surroundings, particularly in an office environment. The same “harmless” curses that may be acceptable among a particular team could be construed as creating a harsh working environment if overheard by more sensitive ears. Similar concerns exist with the use of any profanity that could be interpreted as referring to intimate acts, or as directed to sensitive topics or personal characteristics.
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Ultimately, cursing on the part of legal professionals is a phenomenon that mirrors the pervasive use of profanity that marks society today. While there may be concerns about the use of foul language by lawyers, and inappropriate language can have an impact on a lawyer’s career prospects, profanity is so pervasive that everyone needs to make some peace with its use. That involves both tolerance of its use by others, at least in some measure, and more importantly in terms of setting a personal comfort level for one’s own use of swear words. Everyone will calibrate their profanity “settings” differently, but one thing will likely never change: opposing counsel will always be $#@!#$’s.
Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique. The firm’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at [email protected] or follow him on Twitter: @gkroub.