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«Civility by Michael B. Keating REPRINTED FROM Business and Commercial Litigation in Federal Courts Section of Litigation | American Bar Association ...»

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by Michael B. Keating

REPRINTED FROM Business and Commercial Litigation in Federal Courts

Section of Litigation | American Bar Association




[footer]* The author expresses his appreciation to his colleagues Catherine C. Deneke, Esq.,

Madeleine Rodriguez, Spencer B. Holland, and Christopher Cifrino for their assistance with the

preparation of this chapter for the Third Edition.

§ 60:1 Scope note This chapter addresses the concept of civility as it may arise over the course of litigation in federal courts. After briefly noting the reactions of courts and bar associations to the perceived rise in uncivil behavior, the chapter discusses ways in which litigants may address uncivil behavior over the course of federal litigation, both formally and informally. Given the repercussions that could follow from a civility-based motion and the general wariness of courts to police attorney behavior, it is often advisable to consider informal methods of dealing with uncivil behavior. In that vein, the chapter discusses ways to address uncivil behavior in specific contexts, from discovery abuses to trial misconduct to general incivility, with reference to relevant federal precedent.

As set forth in this chapter, one possible response to uncivil behavior in litigation is a motion for sanctions. This chapter focuses on matters of civility and does not address broader sanctions issues except to the extent necessary to put civility in context. The principal treatment of these broader sanctions issues is in Chapter 50 “Sanctions” (§§ 50:1 et seq.).

This chapter discusses incivility throughout discovery. Once again, one possible response to incivility in discovery is an application to the court for sanctions. In addition to the discussion of discovery sanctions in Chapter 50 “Sanctions” (§§ 50:11 et seq.), there is additional coverage of discovery sanctions in Chapter 21 “Document Discovery” (§§ 21:1 et seq.). Accordingly, the coverage of discovery sanctions in this chapter is limited to matters specifically related to civility.

This chapter also discusses incivility during depositions. There is also extensive discussion of deposition conduct in Chapter 20 “Depositions” (§§ 20:1 et seq.). Because the principal treatment of deposition conduct is in Chapter 20, the coverage of deposition conduct in this chapter is limited to matters specifically relating to civility.

Finally, this chapter addresses incivility in court and certain forms of improper behavior before juries. There is extensive coverage of trial conduct in Chapters 33 through 40 (§§ 33:1 – 4.0:30), and also coverage of various forms of improper behavior before juries in Chapter 59, “Ethical Issues in Commercial Cases” (§§ 59:1 et seq.). Because the principal treatments of trial conduct and ethical issues are in the chapters devoted tothose subjects, the coverage of trial conduct and ethics in this chapter is limited to matters specifically relating to civility.

§ 60:2 Strategy, objectives, and preliminary considerations In 1971, Chief Justice Warren Burger stated that “[a]ll too often, overzealous advocates seem to think the zeal and effectiveness of a lawyer depends on how thoroughly he can disrupt the proceedings or how loud he can shout or how close he can come to insulting all those he encounters....”1 Although “from its earliest days in England, the legal profession has developed conventions to conduct litigation and business in ways that diminish war-like instincts in the service of client interests,”2 the modern problem of incivility has only increased since the Chief Justice’s remarks. One court characterized the problem as follows: “Advocacy is supposed to be helpful, to make it easier for judges to understand the facts and legal issues of the case. Yet too much advocacy today is the opposite of helpful. It favors exaggeration over accuracy, attack over debate, and indiscriminate barrage over efficiency and cooperation. A culture of belligerence has taken root in our legal system, and it is an affliction on the day-to-day business of judging.”3 What has caused this disturbing trend? It is not enough to say that the litigation process is adversarial and litigators have ethical obligations to —in some jurisdictions — Chief Justice Warren E. Burger, The Necessity for Civility, 52 F.R.D. 211, 213 (May 18, 1971) (remarks made to the Opening Session of the American Law Institute). There is no shortage of judges who have made similar observations. The Honorable Sandra Day O’Connor, for example,

more recently wrote:

[T]he justice system cannot function effectively when the professionals charged with administering it cannot even be polite to one another. Stress and frustration drive down productivity and make the process more time-consuming and expensive. Many of the best people get driven away from the field. The profession and the system itself lose esteem in the public's eyes.... In my view, incivility disserves the client because it wastes time and energy—time that is billed to the client at hundreds of dollars an hour, and energy that is better spent working on the case than working over the opponent.

Sandra Day O'Connor, Civil Justice System Improvements, ABA at 5 (Dec. 14, 1993) (footnote omitted).

See Boston Bar Association Task Force on Civility in the Legal Profession Report, at 15 (May 23, 2002).

Hagen v. Faherty, 66 P.3d 974, 979-80 (N.M. Ct. App. 2003) (quoting Elliot L. Bien, Viewpoint: A New Way for Courts to Promote Professionalism, 86 Judicature 132, 132 (2002)).

-2zealously” advance their clients’ interests.4 Neither of those factors alone causes incivility, as many successful litigators who are consistently professional honor both factors and neither is new to litigation. Suggested causes of the modern problem include an increase in the number of practicing attorneys; the growth of law firm size; a rise in inside counsel and a shift to transaction-based client relationships; increasing time pressures; a lack of guidance and training for young associates; the hierarchical organization of firms; the unaccountability of those practicing in large metropolitan areas and in national practice areas; and, most fundamentally, the perception that rude litigators obtain better results for their clients.5 It may not be fair to single out litigators or, more generally, lawyers as fostering this trend, as in many respects American society has moved away from an ethos in which manners are considered to be See Jonathan J. Lerner, Putting the “Civil” Back in Civil Litigation, 81 N.Y. St. B.J. 33 (2009) (“Aggression, belligerence and abusive tactics are by no means inherent in our adversarial system, and civility and mutual respect are not mutually exclusive with our role as zealous advocates.”); see also In re Abbott, 925 A.2d 482, 489 (Del. 2007), cert. denied, 128 S. Ct. 381, 169 L. Ed. 2d 263 (U.S. 2007) (“Civil behavior towards the tribunal and opposing counsel does not compromise an attorney's efforts to diligently and zealously represent his or her clients.”);

Paramount Communications Inc. v. QVC Network Inc., 637 A.2d 34, 54 (Del. 1994) (“[I]t is a mark of professionalism, not weakness, for a lawyer zealously and firmly to protect and pursue a client's legitimate interests by a professional, courteous, and civil attitude toward all persons involved in the litigation process.”); Judith D. Fischer, Incivility in Lawyers’ Writing: Judicial Handling of Rambo Run Amok, 50 Washburn L.J. 365 (2011) (discussing how zealous advocacy has become so prevalent that it has been nicknamed “Rambo Litigation,” after the fictional movie character “who was always ready for a fight”). Recognizing that “zealous” advocacy has too frequently become a pretext for incivility, the Arizona Supreme Court deleted the word from its Rules of Professional Conduct in 2003, replacing it with a duty to “act honorably” in pursuit of clients’ interests. See Ariz. S. Ct. R. 42. Indiana, Louisiana, Montana, Nevada, New Jersey, Oregon, and Washington have since followed suit. David D. Dodge, When Lawyers Behave Badly: The “Z” Word, Civility & the Ethical Rules, 44 Ariz. Att’y 18 (2008), available at http://www.myazbar.org/AZAttorney/PDF_Articles/0408EthicsCivility.pdf.

See Final Report of the Committee on Civility of the Seventh Federal Judicial Circuit, 143 F.R.D. 441, 445 (7th Cir. 1992) (“[D]iscovery, billing demands, and the increased size of the bar are among the fuels igniting uncivil litigation practices.”); Robert L. Nelson, The Discovery Process as a Circle of Blame: Institutional, Professional, and Socio-Economic Factors That Contribute to Unreasonable, Inefficient, and Amoral Behavior in Corporate Litigation, 67 Fordham L. Rev. 773, 777-87 (1998) (listing the factors identified by surveyed corporate litigators as reasons for a decline in the civility and ethics of litigation). See also Shawn Collins, Be Civil? I’m a Litigator!, Nat’l L.J., Sept. 20, 1999, at A21 (decrying the creation of civility committees by bar associations as “stalking horses for legal wimpery” and pronouncing that lawyers should not be constrained by “some notion that you’re supposed to like the person you’re paid to beat”); Raoul Felder, Op-Ed., I’m Paid to be Rude, N.Y. Times, July 17, 1997, at A23 (maintaining that a proposed civility code in New York “reflects a misreading of what lawyers are hired to be – adversaries – and a misreading of what the legal profession is about – conflict”).

-3important in all endeavors. Hence, regretfully, the problem is not confined to major metropolitan areas where litigators practice with some anonymity, but occurs even in rural environments in which combative and “in-your-face” behavior is condoned and sometimes encouraged. In reality, while civility is important in any legal community, it is particularly crucial within small legal environments and specific practice fields, even when those specific practice fields are in large metropolitan areas.6 The consequences of this conduct can appear throughout a case. An uncivil opponent has the potential to add unnecessary cost and unpleasantness to all stages of a case, obstructing everything from initial discovery disclosures to settlement negotiations.7 Discerning the cause of incivility in an opponent may be useful in developing a strategy to combat it. For instance, some incivility occurs when a party (or its attorney) feels insecure in the face of a more experienced opponent and, therefore, reaches for any supposed advantage that can be obtained. This can be dealt with by addressing the insecurity rather than the behavior, perhaps by demonstrating that greater resources or experience will not be used to disarm the opponent from effectively representing the client’s interests. In order to quell such tendencies, opposing attorneys may be advised to meet – face to face – at the onset of litigation to try to dispel any such concerns. Some litigators (like other people) are simply nasty, and, as discussed below,8 nothing short of a court admonition or sanction will adequately address the issue.9 Bad habits are learned early in a litigator’s career, and it is critical that more experienced lawyers serve as role models for younger lawyers. Law students who study by the case method – as most do – gather their legal education by reading materials that are, by definition, adversarial. Though students are required to take courses such as Ethics or Professional Responsibility, the legal academicians who teach these courses, themselves sometimes woefully disconnected from the practicing bar, may not “step beyond the line of straightforward rule memorization and specific See Rao v. Ross, No. 3:08-cv-1596, 2008 WL 2441926, at *3 (N.D. Cal. June 13, 2008) (“Both [attorneys] practice within the small intellectual property legal community of Palo Alto. If they have not previously bumped into each other, they undoubtedly will in the future. Civility is of the utmost importance in any legal community, and it is absolutely obligatory in this case.”) (emphasis added).

See Chapter 55 “Techniques for Expediting and Streamlining Litigation” (§§ 55:1 et seq.) for discussion of increased costs and reduced efficiency resulting from incivility.

See §§ 60:4-60:8, 60:10.

See, e.g., Cotterill v. City and Cnty. of S.F., No. C 08-2295 JSW (JL), 2010 WL 1223146, at *14 (N.D. Cal. March 10, 2010) (indicating that “a quagmire of discovery disputes, countless motions for a broad spectrum of relief, rambling over-length briefs, and unacceptable incivility” needlessly burdened the court’s limited judicial resources, but adding that the real cost of the incivility “is borne by the clients and the legal profession as a whole”).

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