MARCH 2000
Civilizing Civil Litigation
Joseph P. Bennett
In the courtroom, the presence of a judge or the threat of judicial intervention is often enough to put counsel on their best behavior. The judge can deal swiftly and effectively with any breaches of decorum or civility. Problems arise, however, when the court is not watching.
- At least one court has incorporated a broad civility code into its local rules regarding courtroom practice. The United States District Court for the Eastern District of Washington requires lawyers to advise their clients that "civility and courtesy are not to be equated with weakness." The civility code further requires counsel to cooperate in scheduling depositions and hearings and promptly respond to written and oral communications from opposing counsel. Lawyers must also refrain from condemning the opposing counsel or party.
- The King County Bar Association has adopted guidelines of professional courtesy that are aspirational and attempt to set a standard of attorney conduct higher than mere compliance with the Rules of Professional Conduct.
Unlike the Eastern District of Washington's civility code, the ten guidelines of professional courtesy are "not rules and not intended to be treated like rules." They call upon lawyers to internalize high standards of professional conduct in their practices.
- The Board of Governors of the California State Bar Association recently concluded that aspirational guidelines have done little to moderate lawyer behavior and that Rambo-style litigation practices appear to be on the rise. In response, the bar association established a pilot peer counseling program: a committee of lawyers reviews complaints of unprofessional conduct and recommends peer counseling when appropriate. Peer counseling was adopted only after more limited efforts, such as professionalism guidelines, had been tried without effect.
Some lawyers take matters into their own hands by sending an introductory letter whenever encountering opposing counsel for the first time. The letter may contain a unilateral pledge to act with professional courtesy, which includes avoiding "canned" interrogatories and requests for production and instead tailoring these documents to fit the particular case; committing in advance to reasonable requests for rescheduling depositions, hearings, and other events so long as the client is not prejudiced; and maintaining a courteous tone in all oral and written communications. Opposing counsel generally respond positively and do not misinterpret the commitment to take the high road as a sign of weakness.
If professionalism is declining, then each of us has a stake in reversing that decline. It is not enough to protest that the other lawyer started it. Young lawyers especially have an opportunity to enhance the profession and the public's image of lawyers through their own daily conduct. Typically, opponents that cause the greatest concern are those who are intelligent, well-prepared, and courteous. These lawyers reflect well on their clients and build credibility with judges and juries. They are professionals worth emulating.
Adapted from "Civilizing Civil Litigation" by Joseph P. Bennett, De Novo (Washington State Bar Association Young Lawyers Division), Jan/Feb 1998.
Ready Resources
Effective Depositions by Henry L. Hecht. Litigation Section. 1997. PC #531-0228. Litigation Section members receive a discounted price. To order call 800/285-2221.
Deposition Do's
- Treat others with courtesy and respect.
- Respond to other lawyers in a timely manner and be considerate of their time.
Deposition Don'ts
- Serve written discovery that is overbroad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence.
- Make objections that are ill founded and interposed solely to annoy, harass and delay.
- Ignore the law or misstate the facts.
- Seek sanctions against opposing counsel for mere tactical advantage.
- Make unfounded accusations of unethical conduct about opposing counsel.
 
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