Where Goes Civility?

By Jonathan

At first glance, litigation in the 21st Century seems just like litigation in the 20th.  We file or answer Complaints, we serve or answer discovery, and we move forward towards settlement or trial.  While lawyers have always complained about civility in the profession, the lack thereof has, to me at least, become so prevalent that one must wonder what happened?  How did we get here?

Maybe it’s just me.  As a young lawyer, I’m sure I was known for getting into some disagreements with opposing counsel.  Yet, as I’ve grown more experienced, I see argument, discourtesy, and a lack of professional courtesy at every turn.  Worse, this change is no longer limited to relationships with opposing counsel — even judges are getting into the act with alarming regularity!

A recent example is just par for this long course…  My partner recently had a case in a not-to-be-named federal court.  The pre-trial conference was set for a few weeks before trial, except that he was actually in trial hundreds of miles away.  So, he filed an “emergency” motion, on the Thursday before the Monday pre-trial hearing, seeking to “continue” the pre-trial conference because he’s in trial and scheduled to make closing arguments on the day in question.  Without explanation, the federal judge DENIED the request.

The federal court requires the lawyer who will try the case to attend the pre-trial conference.  I thought it was obvious (maybe not?) that he couldn’t be in two places at once.  There is no solution — he could skip giving closing argument (right), or just not show up for the pre-trial conference and get sanctioned.

I’m 100% certain that the judge involved was a lawyer earlier in his career.  He must know that circumstances arise where lawyers simply can’t do what the judge’s calendar dictated.  He must know that this situation could not be avoided, and that we have done everything we could (cases settle, so we waited until the week before trial) to avoid the conflict.

Why not, at least, give an explanation of why the request was merely DENIED?  Why not offer some glimpse into the murky world of judicial decision-making, and help us understand what we should do next time, so that the system works better for everyone?

Unfortunately, this example is but a mere leaf in a forest of regular issues.  Opposing counsel seem to find it part of their job description to be downright mean, if not wholly uncivil, when this does not one thing to improve their client’s position in the case.  (Or does it?  Some lawyers certainly believe that being a jerk makes their opposing counsel more likely to tell their clients about it, and more likely to get the case to resolve for more money.)  But it completely undermines the nature of the profession (an interesting blog on our profession can be found here), and makes everyone (plaintiffs, defendants, the lawyers, the judges, even the clerks in the courthouse) sour on what we strive to do — help our clients with often significant legal disputes.

I’m looking for answers.  Are their enforceable measures that can be implemented to help? How can judges play a role?  What can we do?

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2 Responses to Where Goes Civility?

  1. Jonathan says:

    Further to my posting above, I was at a deposition yesterday that just had to be mentioned here. The lawyer for the defendant asks a question, and I asked to have it read back by the court reporter. The lawyer says “Answer the Question!”, and will only permit read-backs where he “approves.”

    He talks over my client’s answers, and won’t permit him to finish. He tells me I “disgust” him. Nice…

    • ja says:

      We’re interested in your stories of civility, or lack thereof, in today’s practice, for a thorough article we’re writing.

      Just today, I got a call from a lawyer in Los Angeles to whom I had never spoken before. He says he read my article. Great! Then he accuses me of unethical behavior. Says we engaged in misconduct when we permitted one party to a lawsuit we’re not in to talk to one of our witnesses. My client isn’t even in the lawsuit — and one party (not his) merely asked to talk to my client. They could have asked, but never did.

      Just another example of lawyers acting out.


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