Civility and Professionalism Get Better Results in Civil Cases
Joe Ramsey
Copyright © 2010
What Do “Civility” and “Professionalism” Mean?
“Civility” means dealing with others with courtesy and respect. The first of George Washington’s 110 “Rules of Civility & Decent Behavior in Company and Conversation” is instructive. That rule provides that “(e)very action done in company ought to be with some sign of respect to those that are present.” For purposes here, civility will be taken to mean dealing with courtesy and respect for opposing counsel and the court in every phase of civil litigation.
“Professionalism” means following the rules of professional conduct we as counsel are sworn to uphold. Of particular importance in civil litigation, professionalism means asserting only truthful and legitimate claims and defenses. (See California B & P Code Section 6068(c); and Rules of Professional Conduct, Rule 3-200; Rule 5-200 (A)-(D); and Rule 5-220.) For purposes here, professionalism will be taken to mean advising clients what they need to hear instead of what they want to hear and dealing honestly and openly with opposing counsel and the court.
In the context of zealous advocacy in adversarial proceedings among trial lawyers, civility and professionalism taken together therefore require advancing just causes with intellectual honesty and respect for opposing counsel, the court, and witnesses. The California Supreme Court captured the meaning and spirit of civility and professionalism when it observed that “(a)n attorney has an obligation not only to protect his client’s interests but also to respect the legitimate interests of fellow members of the bar, the judiciary, and the administration of justice.” (Kirsch v. Duryea, 21 Cal.3d 303, 309 (1978).
More recently, the United States District Court for the Central District of California has adopted and recommends adherence to “Civility and Professionalism Guidelines” which incorporates detailed and specific recommendations concerning day-to-day interactions among counsel in litigation.
Approaching every case with intellectual honesty and respect for opposing counsel and the court will always produce better results for clients. Contrasted with disingenuous factual or legal grounds asserted with antagonism, combativeness, and disrespect, every case handled with civility and professionalism will take significantly less time, will cost significantly less, and will produce more favorable results for clients. If counsel leads by example, there is a good chance he can establish the highest level of civility and professionalism as the standard for every case.
Asserting Sound and Intellectually Honest Positions
Counsel conducts himself professionally by following the rules of procedure, discovery, evidence, and professional conduct. Counsel for every side can advocate his client’s position zealously with intellectually honest positions at every stage of litigation, from the filing of a complaint until entry of judgment following the jury’s verdict.
At the pleading stage, this means filing suit only with established legal grounds or grounds counsel can reasonably advance from current authorities. It means filing suit only when there is legitimate admissible evidence to support the claims made. From the defense standpoint, it requires a well-considered response. Unless there is an intellectually honest legal or factual challenge to be made, it means filing an answer denying allegations, raising affirmative defenses, and getting on to discovery. It sometimes includes the necessity of advising a plaintiff who feels wronged that he has no meritorious claim and advising a defendant that he faces a legitimate claim with no meritorious defense.
After the pleading stage, discovery should be relatively easy. The question what is discoverable is not complex. If the discovering party properly asks for non-privileged information which may reasonably lead to admissible evidence, the responding party must provide it. While reasonable minds do differ whether requested information is privileged and whether it may lead to admissible evidence, in most instances those questions are not reasonably debatable. Law and motion combat over such questions should be carefully, selectively, and responsibly undertaken.
At the trial stage, the rules of evidence are also relatively easy and reflect common sense. Questions must be clear and fair. Subject matter will dictate logical relevance. If evidence is offered to prove the truth of a necessary element of your position, the evidence offered to prove that element may not be inadmissible hearsay. If evidence with logical relevance is so inflammatory that prejudice is likely, there must be a compelling reason to allow it.
There are always many legitimate reasons to differ on the applicability of the common sense rules of evidence. Civility and professionalism require that zealous advocates make their cases in compliance with the rules of evidence and with respect for opposing counsel and the court. The proponent of questionable evidence must first present it to the Court outside the jury’s presence. It is inappropriate to knowingly offer improper evidence hoping to catch opposing counsel by surprise.
Civility and Professionalism Save Time
Asserting intellectually dishonest positions during any stage of civil litigation is disrespectful of opposing counsel, the court, and the administration of justice. At the pleading stage, the court will almost always end up disposing of a frivolous claim or defense. Similarly, during discovery, the court will almost always end up requiring legitimate discovery and refusing intrusive or burdensome discovery. At trial, the court will almost always end up allowing admissible evidence properly offered and disallowing inadmissible evidence improperly offered.
So the time spent gaming the rules of pleading and discovery before trial and the rules of evidence during trial is not only unprofessional but also is a waste of time and will almost always be resented by opposing parties, opposing witnesses, judges, and juries, at least because it will be seen as the waste of time that it is.
Asserting disingenuous positions is bad enough. Doing so in an antagonistic, insulting, or mean-spirited manner exacerbates unprofessional conduct by a lack of civility and inevitably wastes even more time.
Civility and Professionalism Save Money
The more time one spends getting things done, the more it ends up costing clients. If counsel affirmatively establish a cooperative approach to pleading, discovery, and trial, it will take less time to do what needs to be done to prepare and try cases properly. The less time it takes to prepare and try cases, the less it should usually cost.
Conversely, since a lack of civility and/or professionalism wastes time, the cost to the client will likely rise. Counsel should not charge for the time consumed by asserting unprofessional positions or being churlish. However, clients inevitably end up paying for some if not all the wasted time and energy.
Civility and Professionalism Get Better Results
I am not aware of any empirical studies which have been designed and conducted to measure the comparative success in conducting civil litigation with intellectual honesty and respect instead of disingenuousness and disrespect. I base the contention that civility and professionalism get better results on my experience handling civil litigation, observing how it is handled by my colleagues, and anecdotally from what I hear and read of how it is handled by others. From my admission to practice until now, I have been privileged to handle a fair number of cases myself but also to observe, hear, or read about thousands more.
Only one relatively infamous trial lawyer that I know of reportedly got one or more favorable verdicts from jurors he insulted in cases in which he also insulted opposing counsel. In my entire experience, he was the singular and therefore extremely rare exception to the rule that civility and professionalism get better results.
You Can Set the Tone
Most of the time, trial lawyers can expect a reaction from opposing counsel which is consistent with how they treat opposing counsel. If counsel is civil and professional with opposing counsel, there is a good chance opposing counsel will respond in kind. Regrettably, the converse is also usually true: If counsel is rude and unprofessional with opposing counsel, there is a good chance opposing counsel will respond in kind.
The importance of starting right in dealing with opposing counsel and the court cannot be over-stated. If counsel take the initiative and offer reasonable accommodations to opposing counsel from the beginning of the case, and if opposing counsel respond in kind, the litigation will almost certainly take less time, cost less money, and produce more favorable results for all sides. Such results usually please clients and can lead to more business.
Not only that, we have not even considered the fact that civility and professionalism substantially reduces wear and tear on the nervous systems of all concerned!
Joe Ramsey received his A.B. and L.L.B. degrees from Stanford University, and has 35 years of general and appellate civil litigation. He has been mediating cases since 1986, and has engaged in ADR practice full time since 1997. He may be reached at www.joeramseylaw.com
[top | Publications]