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January 2008


Can Litigation Ever Be Civil?

By Sean T. Carnathan, Litigation News Associate Editor


California State Bar Association issues civility guidelines


Have things gotten so bad that lawyers actually need written guidelines reminding them they should “treat clients with courtesy and respect” and “be punctual”? The Board of Governors of the California State Bar Association seems to think so. Effective July 20, 2007, the California State Bar Association issued voluntary Guidelines of Civility and Professionalism that urge attorneys to observe such basic courtesies.


“Unfortunately, we live in a less civil society today. It is not surprising that incivility has spilled over into the legal profession, and that something needs to be done about it,” says Jeffrey C. Morgan, Atlanta, Chair of the Trial and Appellate Rules Committee for the Intellectual Property Law Section of the American Bar Association.


“Some lawyers approach the practice of law as taking a severe personality disorder and turning it into a pretty good living,” says Morgan, only half kidding. More seriously, he notes that “civility is not just a matter of good manners. It’s also good business. Lawyers’ and their clients’ interests both benefit when lawyers are courteous.”


Some of the problems the Guidelines address will doubtless be unpleasantly familiar to any experienced practitioner. The Guidelines, for example, take a dim view of serving papers late on a Friday afternoon or the day before a holiday.


Family law and criminal law practitioners each have a separate section all to themselves. The Guidelines, for example, direct family law practitioners not to “abet vindictive conduct.” Prosecutors, say the Guidelines, should not disparage defense counsel for defending their clients.


Not everyone agrees that the Guidelines are the solution to this widely recognized problem. “The California rules identify some serious problems with the way lawyers behave in litigation. They rightly identify family law and criminal law as two areas that need attention,” agrees Professor Michael E. Tigar, Pittsboro, NC, Past Chair of the Section of Litigation’s Council. “However,” he says, “there are better ways to deal with some of these issues.”


Professor Tigar prefers increased judicial control, such as the approach of the U.S. District Court for the Eastern District of Texas under the Civil Justice Reform Act of 1990. The District implemented “early judicial control of cases, discovery limits and schedules, and other devices that require lawyers to focus on the merits of their cases.” The results have included diminished “discovery abuse” and other “incivility.”


California’s State Bar Association is far from alone in trying to address this epidemic. Courts and bar associations across the country, including Idaho’s courts, the Bar Association of the State of Maryland, and Boston Bar Association, have issued standards or guidelines for civility.


Are lawyers paying any attention to these mandates? Boston’s standards date back to 1994, and its bar association has had a series of task forces address the issue. The most recent Boston Bar Association task force report, issued in May 2002, noted accelerating incivility, and concluded that: “It is no accident that lawyers tell ‘war stories.’ Wars are not polite.” Nevertheless, said the BBA Task Force, “[c]ivility is essential . . . to our professional lives.”


 

What You’ve Had to Say:

  • DEC 12, 2007 – Litigation can become civil when lawyers recognize that they are advocates for their client’s rights but not gladiators facing a den of lions seeking to devour them. I have had many cases proceed in a “civil” manner and managed to stay friends with opposing counsel. When the lawyer personifies his client's claims he or she is likely to become more agressive and combative in dealing with opposing counsel.
  • DEC 28, 2007 – If “civil” means courteous and polite, yes, litigation can be civil – sometimes, perhaps most of the time. But should litigation be civil? Sometimes it should not because “civil” also has to do with rights of citizens, and duties. And arguing about rights and duties sometimes takes discourteous and impolite conduct to be effective - to be heard. And when up against entrenched interests, sometimes it takes expressions of “dis-respect” and expressions of dismay, outrage and perhaps, even, contempt. Is this nice? No. Is it just? Perhaps.

 
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