PART ONE: CIVILITY BETWEEN LAWYERS
Civility is defined as something said or done in a formally polite way. Many people involved in litigation would say that civility at trial does not exist or at least is certainly rare. In family law, the recent case of Marriage of Davenport discusses the lack of civility between lawyers. But there are also issues in the lack of civility between the parties, and sometimes even the lack of civility between judges and lawyers. Over the next few weeks, I will explore the lack of civility which I have observed often to exist among these three groups.
Being Civil Does Not Mean Being Weak
Civility among lawyers does not mean that either lawyer lacks aggressiveness or vigorous advocacy. Each lawyer in fact has an ethical obligation to zealously represent his or her client. Zealously does not mean being uncivil, abrasive, rude, condescending or demeaning. Zealous means full of energy, effort and enthusiasm. Many lawyers in their efforts to be zealous become uncivil with each other through oral and written communication that devolves into personal attacks. This is such an important issue that in 2011, the California Court of Appeal took civility head on in Marriage of Davenport, 194 Cal. App. 4th 1507.
A Lack of Civility May be Sanctioned
In this case the Court of Appeal gave a stern reminder to lawyers about their conduct and made it clear that free speech and zealous advocacy are no defense to a claim for sanctions brought about by a lawyer’s uncivil behavior. The court warned that unnecessarily demeaning, accusatory and personal attacks contained in correspondence or pleadings serve no useful purpose in advancing the resolution of disputed issues.
Practicing family law is made difficult because of the high emotions of the clients, which in turn places high demands on the lawyers. Every day family law attorneys are inundated with not only those demands placed on them by their clients, but also by the opposing counsel (who is facing similar high demands from his or her clients) and by the courts. Thanks to movies and television, many clients have an image of what they believe a lawyer should be – tough and nasty. Many clients want to use their lawyer to punish their spouse and his or her lawyer, and too often many lawyers − for whatever reason – embrace this image and act accordingly. This is where civility breaks down and becomes personal attacks. For the lawyer who is the target it takes great restraint not to respond in kind, but lawyers who strive for civility have likely developed defenses against the uncivil, personal attack from opposing counsel.
An Example of Incivility
I recently experienced an unfortunate example of such a situation. To express my frustration with opposing counsel’s focus on insulting me and my client rather than working productively to move the case toward resolution, I sent him a two paragraph letter advising him that his negative and toxic behavior was unacceptable and that we would seek court orders to move the case forward. I saw no other choice because each oral and written communication with this lawyer resulted in him personally attacking me. In response, I received a multi-page, single spaced letter filled with personal attacks! In my 18 years of practicing law, never has a lawyer lashed out at me in this fashion. While I very much wanted to respond, not only to defend against the allegations but to speak my mind about how unprofessional this lawyer was acting by churning the case for his own economic benefit, I did not. Instead, I simply responded by referring him to the case of Marriage of Davenport. That worked – at least for now. The personal attacks have stopped, but unfortunately, the lawyer continues to refuse to work toward resolution. So, the case will be litigated and a judge will make the decisions, which is unfortunate, but at least the litigation will force the case to an end.
Even in Litigation, Civility Is Required
Even in litigation, civility as shown by cooperation is required. Anyone who has litigated knows the judge expects the lawyers to meet and confer not only on the merits of the case (i.e., the issues in dispute), but also on the exhibits to be used at trial, the presentation of witnesses and other issues important to trying the matter. Such cooperation is required and is in the best interests of all parties. There should not be any conflict between being an advocate and working cooperatively to achieve the goals of the client.
Is Incivility on the Rise?
Civility among lawyers has always been an issue. However, I feel that as the economic recession has dragged on, many lawyers are so desperate for business that they are doing more to fuel the emotions behind the case so that it stays highly contested − thereby resulting in more attorneys’ fees. This is no excuse. Clients should not bear the cost of a longer trial just because their lawyer needs the business nor should lawyers use this as a reason to treat their colleagues so poorly – it is simply not professional. I am proud to say that personal attacks are not my style, and that our legal practice is vibrant and therefore we do not face the quandary of putting our economic interests over those of our clients.
As stated in Marriage of Davenport, “Zeal and vigor in the representation of clients are commendable. So are civility, courtesy and cooperation. They are not mutually exclusive.” This is a lesson that all parties (and lawyers) should take to heart for their own benefit.