According to the Guidelines for Civility in Litigation in effect in our
courts, “Counsel should at all times be civil and courteous in communicating
with adversaries, whether in writing or orally.”1
Just how does that compare with the March 3rd Republican Debate?
“CRUZ: Breathe, breathe, breathe. TRUMP: Lyin’ Ted. CRUZ: You
can do it. You can breathe. I know it’s hard. I know it’s
hard. But just...RUBIO: When they’re done with the yoga, can I answer
a question? CRUZ: You cannot. (LAUGHTER) RUBIO: Unbelievable. CRUZ: I
really hope that we don’t -- we don’t see yoga on this stage.
RUBIO: Well, he’s very flexible, so you never know. (APPLAUSE).”
I found myself at counsel’s table in the Mosk Courthouse, verbally
grappling with opposing counsel in a summary judgment argument, when my
adversary wisely said to me: “Sit down, Howard. You’re winning.”
I thought about it, sat down, and won the motion. My adversary was representing
his client zealously, but fully mindful of the Guidelines (which I had
lost sight of). Isn’t it time to ignore the political circus and
return to civility?
What are the Origins of Incivility?
Among the theories posited for increasing incivility:
- The increasing number of attorneys, particularly in large urban areas.
There was a time when the legal community quickly knew about attorneys
who betrayed a trust or reneged on an agreement. Now, in many cases, attorneys
encounter opposing counsel infrequently during a career of many decades.
The anonymity has required little investment in civility.
- Inexperienced lawyers and a lack of mentoring.
- The nation’s current, fractious public discourse.
- Technology. Technological advances in law practice tempt attorneys to respond
instantly to a shrill email with an equally shrill one. When letters were
the common means of communication, even a provocative letter allowed the
recipient time to reflect before responding. And social media has encouraged
everyday jerk lawyers to broadcast their views online. The Internet provides
a broad platform and the ability to act anonymously.
- Over-the-top portrayals of lawyers on TV and in films. (Did you watch the
People v O. J. Simpson?)
- The fuzzy line between aggressive advocacy and rudeness. As the California
Supreme Court noted in increasing the penalty on an attorney who went
beyond vigorous defense: “[–]’s conduct, however, reflects
a seeming unwillingness . . . to acknowledge that at some point his position
was meritless or even wrong to any extent. Put simply, [–] went
beyond tenacity to truculence.”
What Conduct is Covered by the Civility Guidelines?
For the last 30 years, an array of jurisdictions, bar associations, and
state and federal courts have adopted civility codes, standards, oaths
and creeds. Civility codes seek to combat abuses that permeate civil litigation:
obstreperous deposition tactics, discovery calculated to harass, obstinacy
over scheduling matters, false accusations of impropriety against adversaries.
And civility codes aim at more basic failures: lawyers who fail to cooperate,
act honestly, behave politely, or keep promises. 2 Ten core concepts have
been identified, 3 including the obligations to (1) keep commitments and
seek agreement and accommodation with regard to scheduling and extensions;
(2) be respectful and act in a courteous, cordial, and civil manner; (3)
be prompt, punctual, and prepared; (4) maintain honesty and personal integrity;
(5) communicate with opposing counsel; (6) avoid actions taken merely
to delay or harass; (7) ensure proper conduct before the court; (8) act
with dignity and cooperation in pretrial proceedings; (9) act as a role
model to the client and public and as a mentor to young lawyers; and (10)
utilize the court system in an efficient and fair manner.
Some argue that, in fact, there was no Golden Age of civility, but instead
a time when the legal community was small, closed, and discriminatory.
According to this argument, civility was maintained by barring entry to
those who would bring diverse viewpoints to the bar.
But others say things are getting worse:
Some examples of incivility from recent cases:
- In August 2015, during a tense discussion in a deposition of a woman accusing
a bank of improperly seizing her home, the plaintiff’s attorney
stopped to duck her head under the conference room table. Asked by bank
counsel what she was doing, the plaintiff’s attorney told bank counsel
“she was looking to see if there was anything between my legs.”
- In 2012 an attorney was disciplined because of the following argument before
the Appellate Division of the San Luis Obispo Superior Court: “I
heard everything the [trial court] had to say, and I addressed that in
my arguments prior to his reaching his pre-printed ruling. And he said
he didn’t care. He was the epitome of the completely sealed and
closed shut mind. You know . . . a human mind is a lot like a parachute.
If it doesn’t open, it will get you killed someday.”
- In 2013, an attorney responded to his client, a church, which had received
a town notice that it needed to comply with zoning laws; the attorney
copied the town manager on the following: “You have been sent a
letter by purported Town Manager [--]. The letter is false. You notice
[the Town Manager] has no order. He also has no brains, and it is questionable
if he has a soul. Christ was crucified some 2,000 years ago. The church
is His body on Earth. The pagans at [--] want to crucify his body here
on Earth again.”
Twenty years ago, Mark Neal Ironstone noted: “Generally speaking,
civility is important because it frames common expectations about trust
and respect in seeking resolution through dialogue. Without such mutual
confidence there cannot be an effective meeting of the minds as a way
to resolve social disputes and problems. Instead, individuals wind up
talking past each other or sinking to the lowest common denominator to
strike a short term advantage or to achieve a cheap gain.”
So as attorneys, we have an obligation to conduct ourselves with dignity,
courtesy and integrity. And please, let’s not emulate the politicians.
- See, e.g., Rule 3.26 of the Local Rules of the Los Angeles Superior Court,
adopting as “recommendations to members of the bar” the guidelines
set forth in Appendix 3.A, paragraph (d)(1).
- See Glist, Enforcing Courtesy: 2 Default Judgments and the Civility Movement,
69 Fordham L. Rev. 757 (2000)
- Campbell, Raise Your Right Hand and Swear to Be Civil: Defining Civility
as an Obligation and Professional Responsibility, 47 Gonzaga L. Rev. 1 (2011).
Howard Fredman is a business litigation partner at Fredman Lieberman Pearl LLP,
www.flpllp.com, with extensive trial and appellate experience, especially
in federal court.
He can be reached at 310 226 6796, or firstname.lastname@example.org.