Report of the Civility Committee

CIVIL LITIGATION
Report of the Civility Committee

by Craig G. Adamson

What, if anything, can be done to increase the practice of civility between lawyers or, in the alternative, what can be done to decrease incivility? That is the questions being studied by the litigation section subcommittee on civility. The committee is in its second year of operation, and, as you might suspect, it has no easy or ready answers to these questions.

During its first year, the committee adopted a program of publishing scurrilous letters from one layer to another. That program continues and you are invited to submit appropriate examples of letters you have received. The committee is also considering publishing laudatory letters about lawyers. The first of those, a letter by Bob Wilde praising the conduct of Mike Mohrman, is published below. Other examples of encouraging behavior will be noted in this space in the future.

At its initial meeting in 1995, the committee focused on the question of whether adopting yet another code is likely to improve civility. The question is still being debated, and your comments are welcome.

Although it is difficult to believe that anyone who has been able to graduate from an accredited law school and pass the bar exam has not figured out that abusing court personnel is a very poor idea, the committee is assured that it happens eve ore frequently. Judge Pat brain is putting together a group of court personnel who will report to the committee on problems they face, and possible solutions.

Incivility is a difficult problem. The difficult begins with a definition. Sometimes a third party cannot tell whether a lawyer’s conduct is uncivil, or merely firm advocacy. On the other hand, most lawyers are well able to recognize incivility when they see it. While this committee and other bodies, both within and without the Bar, struggle with how to improve civility, a few modest suggestions seem to be in order.

First civility begins at home. Begin each day by dedicating yourself to the idea that you are going to be civil in your dealings with others. Many people fail to understand that you can be civil and still be an effective advocate. Examples of Utah lawyers who are unfailingly civil, but who have never been accused of failing to strongly and effectively advocate their client’s position, come easily to mind. Among those are Steve Nebeker, Gordon Roberts, and Carman Kipp. Being civil works. If you haven’t tried it, you should.

Second, being civil helps your clients. Remember that your job is to secure a just resolution to a dispute, and not to become a personal participant in it. If you have allowed yourself to become part of the problem, instead of part of the solution, you can only expect that your opponent is going to insist on the matte being handled in the most formal manner possible. If you have personally abused opposing counsel or the opposing client, you will end up doing things in the most expensive way possible, and you will have to explain the cost of doing it that way to your client.

Third, do not let the miracles of modern technology trap you. Modern technology has made it possible for a lawyer to sit in the office, and either dictate into a microphone or type into a computer terminal, letters and pleadings that go out to third parties almost immediately. Under these circumstances, it is easy to be carried way by the sound of your own voice, or the beauty of your rhetoric on the computer screen. Court rules that limit oral argument on motions tend to further insulate attorneys from having to look opposing counsel in the eye, or of being able to directly observe the poor effect or non-effect that such comments have on judges. An example of this problem, recently received by the writer, is set forth below. These comments were made in response to a motion to dismiss under Rule 12(b)(6), and a motion for a protective order.

Knowing that P is an individual who must fund this litigation personally, D and its insurance carriers have instructed counsel for D to assign three lawyers to this case and file every conceivable objection and motion, whether such objection or motion has merit or not.

D then filed a meritless Motion to Dismiss that is currently pending before this Court. . . . Indeed, D seeks to keep from both this Court and P internal documents that demonstrate D’s liability to purchasers such as P. This Court should not tolerate such blatant stonewalling.

[I]n an effort to keep these incriminating documents from the Court, D filed a Motion for Protective Order.

The lawyer who made these comments has been around for some time, and should have known that the judge who read them would be perfectly aware that he had no knowledge of conversations between defendant’s counsel and its client, that the comments about insurance were inappropriate, that characterizations of the documents and ha they would show would not be helpful to the court, and that opposing counsel likely would be offended by the comments. These comments did not move the case toward resolution, and did not help the court.

Your job as a trial lawyer is not to be a “paid hater.” It is to attempt to resolve conflicts. If you are part of the conflict, it is much more difficult to secure a good result for your client.