Civility in the Courtoom
The timbre of our time has become unfortunately aggressive and disrespectful. Language addressed to opposing counsel and courts has lurched off the path of discourse and into the ditch of abuse. This isn’t who we are.
In re Mahoney (2021) 65 Cal App.5th 376, 381.
In theory and practice, the legal profession is ideally a noble one. Attorneys are officers of the court and governed by Rules of Professional Conduct. Lawyers are not merely vendors or suppliers of a product, they are the envoys of justice and are entrusted with its safekeeping. The diversity of issues with which counsel deal are critically important and appear to be increasingly marginalized by disrespectful behavior and incivility in and out of court.
Over time and for various reasons, civility in the courtroom has eroded to a point where it impedes progress in litigation, derails collegiality, leads to further stress and has tarnished a distinguished profession. Although the majority of lawyers conduct themselves honorably, nationwide, attorneys report discomfort associated with sharp tactics and incivility in virtually every jurisdiction in the United States.
Why should attorneys promote civility?
Incivility hurts a client’s case.
Consider a lawyer at a deposition who needlessly yells at or insults opposing counsel. Such conduct can lead to sanctions. Indeed, even if a judge chooses not to sanction the offending lawyer, such conduct is likely to negatively impact the judge’s view of the lawyer, and perhaps the client’s position. Even though most judges would not consciously rule against a client merely because his lawyer does not get along with others, it certainly is not advantageous to a client’s cause to have the judge angry at their attorney.
An uncivil lawyer needlessly increases the client’s fees.
Even if obnoxious behavior toward opposing counsel does not prejudice the client’s case, it likely will increase the cost of litigation. When lawyers spend time at a deposition arguing about all things, they increase the length of the deposition. When lawyers refuse to answer discovery based on hyper-technical objections, and then refuse to meet and confer in good faith, they necessitate costly correspondence and motion practice. And when lawyers generally act obnoxiously to each other, they make it difficult to communicate and to resolve what otherwise would be easily resolvable differences. All of this increases the cost of litigation for both sides.
Incivility destroys the lawyer’s reputation.
Besides generating stress, rudeness and discourtesy impact the way judges and colleagues view the uncivil attorney. Nobody wants to refer clients to someone who is unprofessional and wastes a clients’ time and money. Similarly, one’s reputation in the legal community can be severely impacted; and once lost, difficult to rehabilitate.
Tips for Avoiding Inadvertent Incivility
For some lawyers, incivility is just in their blood, and it may take a fed-up judge to finally instill some civility into them in the form of a harsh sanctions order or other rebuke. Most lawyers, however, are not inherently uncivil, but rather may slip into incivility at various times, often with the help of an equally uncivil opposing counsel.
How to avoid conduct that may end up being damaging to the profession, to one’s clients, and/or reputation:
1. Accept the premise that civility is good and incivility is bad. Whether your goal is to: (a) Obtain a good result for your client, (b) Provide efficient legal services, (c) Preserve your reputation in the legal community, (d) Enjoy the practice of law, (e) Treat the legal profession with respect; or, (f) All of the above, attorneys must recognize that acting civilly is both necessary and worthwhile.
2. Follow the Golden Rule. That is, treat others as you would have them treat you. If you want and expect opposing counsel to grant you an extension so you can take a family vacation, then grant opposing counsel that same courtesy.
3. Become involved in local bar associations and bar-related activities. As we become better acquainted with other members of our profession, we realize that our professional reputation does matter—not only in terms of how good and smart we are, but in how we treat other lawyers. Sitting on a board or bar committee with an opposing counsel will make you think twice before sending that heated and unnecessary email. Knowing you may run into opposing counsel at that evening’s bar event may cause you to think twice before yelling at him that morning in a deposition.
4. Avoid personal attacks and vitriol. You can disagree with opposing counsel’s position without attacking him personally. You can even state your client’s opposing position forcefully and persuasively without using words like “ridiculous” or “ludicrous” and without threatening sanctions.
5. Treat every email as if it were a formal letter. When some of us started practicing, written communications with opposing counsel were by letter. After the letter was composed, it would be reviewed and revised before being finalized and sent out. Inappropriate and unnecessary statements hopefully would not survive this process. Now, most communications are by email, and the informality of emails often causes lawyers to hit the “send” button before the communication has been properly vetted. Do not fall into that trap. Thoughtfully review and consider all professional email communications before sending them.
6. Corollary to #5: do not send emails when you are angry. Sometimes, after reading a brief or correspondence from opposing counsel, there is a desire and tendency to respond with a harsh retort. Feel free to write that vitriolic email response if it makes you feel better, but then take a breath, delete the draft email, and start again.
7. Assume all correspondence with opposing counsel will end up in front of a judge, and will be carefully read by that judge. Assume that the judge will not be impressed by your repeated accusations of unethical and other inappropriate conduct by opposing counsel.
8. Do not let an uncivil lawyer drag you into the mud. It is so easy to return an obnoxious email with an equally obnoxious email because, well, opposing counsel deserves it. Avoid that trap. When the record ends up before the court, the difference in tone between you and your uncivil adversary will not go unnoticed.
9. Finally, pretend your mother is present at all of your depositions. Nowhere do counsel behave more poorly than in depositions. The combination of an adversarial situation, stress, and the absence of a judge tends to bring out the worst in lawyers. But it doesn’t have to be that way. If you are taking the deposition, try to avoid arguing over all matter of things with the witness or the defending counsel. If you are defending the deposition, state your position articulately and make a thorough record should the matter proceed to hearing or trial.
A reputation for civility, candor, courtesy, and integrity are critical components of a distinguished legal practitioner and will work to improve and enhance the legal profession immeasurably.