Voir Dire, Volume 1, Number 3, Winter 1996, p. 11

THE CIVIL LITIGATOR

DEAR EDITOR:

As calculated, I was embarrassed that to note that you printed my letter under your “Uncivil Litigator Section” in your summer 1995 edition of Voir Dire. I hereby publicly apologize to your readers and to the attorney it was sent to. Although the message was merited and was the result of a “bad hair day,” the vehicle used to express it was not.  The splenetic and poorly drafter letter should have been tabled.

I also want to apologize to all the practicing retarded monkeys who are members of the Utah Bar and indicate that me reference to them as unwarranted. To allay some of your writers’ (I am sure heartfelt) concerns, be aware that I do have a mother and I am very interested in the personality transplant that was alluded to in one of your articles.  Where can I obtain one? Moreover, although the suggested $80.00 of Valium a month has been ineffective, I have found that a steady dose of Prozac, and increase in my earning capacity, and several deep breaths before dealing with condescending and equally obnoxious fellow attorneys, have substantially curbed by desire to resort to incivility. (Not to mention the possibility of being published again.)

Back again to a more serious note, I am an avid reader of Voir Dire and other articles that are put out by the Bar and want you to know that I find your articles instructive and very persuasive.  I am also encouraged by the admission that those on your civility committee recognized that they have been uncivil at time in their past. Their admissions give me hope that we all can do better, and I hereby make a commitment to do so.

I would like to know, however, if any other young attorneys or new member of the Utah Bar have had the experience that I Have had with fellow litigators who have lengthy careers under the belt. Personally, I have found that some of these older and outwardly “civil” attorneys tend to, as a fellow friend and attorney said, “stab you in the back while they’re pleasantly greeting you with a handshake.”  I have found that many that fit this description knowingly misrepresent the law and the facts, do not answer calls, unnecessarily badge clients, do not grant any reasonable concessions, scheduled dates without any consultation, and are very condescending and overbearing.  Perhaps I possess a persecution complex and I am the one that has been totally at fault for this perception, but I would be interested in knowing from your readers if they have experienced the same.  I would also like to know if you would give equal time to such “uncivil” behavior at your publication instead of merely airing the obvious.

In parting, while I will admit that I am one of the offenders in need of direction, I would again emphasize that I appreciate the efforts being made to promote civility amount members of the Bar, and I reiterate my commitment to better regulate my behavior and communications.

(Name Withheld by Editors)

DEAR MR. CARNEY:

Thank you for your Report of the Civility Committee in Voir Dire. I recently photocopied it and included it and included it with a Motion for Protective Order to opposing counsel, who had been so thoughtful as to schedule a deposition in the middle of a week during which I will be out of town, without bothering to coordinate it with my calendar.

I agree that identifying the uncivil litigators is appropriate.  I also thing it appropriate to recognize the civil litigators, when you find them.  To that end, I submit the following anecdote. 

I appeared in a civil matter in front of one of the judges of the Third District Court, who had granted Summary Judgment to our opponent, who was represented by Michael Mohrman of Richards, Brandt, Miller & Nelson. I felt, and the judge ultimately concurred, that summary judgment had been inappropriately granted. I filed a Rule 59 motion for a new trial.  During a hearing on the matter, the judge expressed her view that Rule 59 was not the proper mechanism to bring this issue back into the court. During the subsequent hearing, Mr. Mohrman informed the court that he had researched the issue following the last hearing, and, much as he would have liked to have it be otherwise, Rule 59 was in fact the appropriate mechanism. Mr. Mohrman provided the court with several citations of cases supporting my position. 

While, in theory, we all know that Rule 3.3(a)(3) of the Rules of Professional Conduct requires us to disclose such precedent to the court, my observation is that the rule is more often honored in the breach than in the following.  In my book, Mr. Mohrman is truly a Civil Litigator” who ought to be recognized as such.

Robert H. Wilde

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