Civility is Not Optional

REPORT FROM THE CHAIR
(Kent B. Scott)

Civility is Not Optional

The fault, dear Brutus, is not in our stars, But in our selves. . . .

- William Shakespeare
Julius Caesar, I, ii. 134

In a recent pollution case involving Monsanto Company, the following battle took place at the deposition of a Monsanto board member. The gladiators were two well-known lawyers who were hired by their respective clients for big dollars. Both attorneys had reputations for effective and zealous advocacy, Joseph Jamail (of Pennzoil v. Texaco fame), and his worthy opponent, Edward Carstarphan, squared off against one another in the following manner.

Mr. Jamail: You don’t run this deposition, you understand?

Mr. Carstarphan: Neither do you, Joe.

Mr. Jamail: You watch and see. You watch and see who does, bog boy. And don’t be telling other lawyers to shut up. That isn’t your (obscenity) job, fat boy.

Mr. Carstarphan: Well, that’s not your job, Mr. Hairpiece.

(The witness tried to speak but could not make himself heard.)

Mr. Jamail: What do you want to do about it, (obscenity)?

Mr. Carstarphan: You’re not going to bully this guy.

Mr. Jamail: Oh, you big (obscenity) sit down.

Aren’t we fortunate not to have any thing like this in Utah? But what about a recent case pending before the United States District Court in the District of Utah where the out-of-state counsel accosted the opposing local attorney at a deposition, locked him in a military hold and threw him to the ground? The attacking counsel walked out of the room, and with him went his pro hac vice privileges to practice law in Utah.

In a recent address to the American Bar Association, Supreme Court Justice Sandra Day O’Connor pointed out: “[T]he justice system cannot function effectively when the professionals charged with administering it cannot even be polite to one another.”

What happened to civility among professionals? Are there too many lawyers chasing after too few clients? Do lawyers feel the need to make more money so their lifestyles can keep pace with that of other well paid professionals? Are we really buying that old dictum of an angered and shortsighted client: “Win at all costs”? Do we still have the courage to be professionally independent of our clients?

What is the Litigation Section doing to promote professional civility? Why not form another committee? So we did. Let’s call this one the “Civility Committee” and have a highly respected attorney, Craig Adamson, chair a blue-ribbon assortment of heavyweight jurists. Serving on the committee are Judges Pat Brian, Bill Bohling, and Steve Henriod, together with former district court judges Phil Fishler and Scott Daniels. Experienced attorneys Frank Carney, Bruce Badger, and Martin Jensen are also key people who served on the Civility Committee. Civil enough for you?

Okay, members of the Litigation Section, what do you expect from the Civility Committee? Should we adopt a civility code and require every attorney to hand it directly under his oath of office. How about displaying a civility code banner in every federal and state courtroom to make things look really good? Should we take another trip down to Southern California to see what they have? What about the Litigation Guidelines adopted by the Los Angeles County Bar Association in 1989, and the Los Angeles County Bar Civility Code adopted in connection with those guidelines? Now there’s a “civil” place to practice law.

For years we’ve had Rule 11 of the Federal and Utah Rules of Civil Procedure, and Rules 3.1 through 3.6 of the Rules of Professional Conduct. Rule 3.2 specifically provides: “A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.” We have articles that appear in bar journals. We have continuing legal education programs on ethics. We have the benefit of what can be learned from Report of the Commission on Professionalism to the Board of the Governors and the House of Delegates of the American Bar Association, 112 F.R.D. 243 (Aug. 1986). We also have the Seventh Federal Judicial Circuit’s Committee on Civility, and the American Bar Association’s Tort and Insurance Practice Section’s Committee on Professionalism.

What more do we need? What more do Craig Adamson and his Civility Committee need to do to bring about the perfect order of civility? They need YOU!!! Yes, you, the “born again lawyer,” to set up and realize that Justice O’Connor makes sense when she so accurately states that our justice system cannot function unless lawyers take personal responsibility for their professionalism.

Let’s improve and protect this profession of ours. Why don’t we do something complex and novel by learning to disagree without being disagreeable? In the words of the Georgia Supreme Court in a recent decision: “If the bar is to maintain the respect of the community, lawyers must be willing to act out of a spirit of cooperation and civility and not wholly out of a sense of bond and unbridled advocacy.” Green v. Green, 437 S.E.2d 457, 459 (Ga. 1993).

Each year, a well-known Phoenix law firm conducts a session with its new associates on the subject of “How to Be a Classy Lawyer.” As part of their training the associates are informed about some of the good reasons for being “classy.” Here is a brief summary of those reasons:

• It’s a small town. If you aren’t classy, words get around.
• Classy lawyers get better results. Judges, juries, and appellate courts trust classy lawyers more.
• It’s more efficient. Less time is wasted on petty and needless disputes.
• Classy lawyers get more referrals.
• It’s good for the firm. A firm with a classy reputation provides each of its members with tremendous advantages.

How, then, do we become “classy lawyers”? The following is a list of suggestions offered by United States District Court Judge David Sam during his presentation at the Federal Court Litigation Practice Seminar held last fall in Salt Lake City:

• Have respect for the fairness and dignity of the role of the law in maintaining a free society.
• Work out matters with other attorneys without involving the court. Conserve the court’s resources so that the court can be used for more substantive matters, such as settlement conferences and trials.
• Give extensions, and waive formalities unless real prejudice results to the client.
• Use discovery and law and motion practice to solve the problems, rather than creating anther layer of difficulties.
• View compromise as a tool.
• Consider alternative forms of dispute resolution in settling all or certain parts of your case.
• Be punctual, and promptly return phone calls to communicate often and accurately with opposing counsel.
• Advise clients that you will refuse to take any course of action that is without merit. Any position that you take will have a good faith basis in the facts and the law governing your case.
• Do not disparage or attribute bad motives to opposing counsel.
• Treat witnesses, the court’s staff, and clerical personnel with courtesy and respect.

Good luck to each of you in your daily pursuit to develop a better professional environment in which to practice law. Craig Adamson and the rest of the members of the Litigation Section’s Civility Committee have a challenging and rewarding job. Every manner of the Utah State Bar is an officer of the court. Take time to read the attorney’ oath each of us signed which states, in part: “I will maintain the respect due to courts of justice and judicial officers. I will not counsel or maintain any suit or proceeding which shall appear to be unjust, nor any defense expect such as I believe to be honestly debatable under the law of the land.”

I am aware of, and fully acknowledge, my need to shape up and be “born again” in matters dealing with professional civility. Incivility is like B.O. The person who is infected with it is usually the last to know.

Each attorney has a stake in regarding the professionalism and collegiality that once characterized the practice of law. The real solution is not found in more committees, civility codes, oaths, or continuing legal education programs. These things are desirable, but only serve as tools that attorneys can use to build a better professional environment.

Consider the words of former Supreme Court Justice Warren E. Burger in a 1984 address to the American Bar Association: “The entire legal profession – lawyers, judges, law teachers – has become so mesmerized with the stimulation of the courtroom contest that we tend to forget that we ought to be healers of conflicts. . . . Should lawyers not be healers? Healers, not hired guns?”

The Litigation Section will use its resources to build a better professional environment and a more civil way of resolving disputes. We invite each member of the Utah State Bar and the judiciary to contribute ideas and comments on this subject to me, Craig Adamson, or any member of the Litigation Section Civility Committee. The members of the Bar have a collective intelligence to develop a better way to treat on another. All we need is a dash of desire to fuel our fire.

Kent B. Scott