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Courting civility

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Indiana Lawyer Focus

Lawyers behaving badly give the profession a black eye, but nurturing civility among opposing litigators can repair the damage, trial and defense attorneys agreed in a rare joint seminar.

The Indiana Trial Lawyers Association teamed with the Defense Trial Counsel of Indiana for the seminar and panel discussion “Two Parties … One Oath: A Conversation on Civility” May 24 at the Indiana University Robert H. McKinney School of Law in Indianapolis.

Peter D. Palmer, a New Albany trial lawyer and partner at Palmer Thompson Law who concentrates on medical malpractice, said he has a simple and effective strategy for uncivil opposing counsel.

“I like to kill them with kindness,” Palmer said. Engaging bitterness or participating in gamesmanship is counterproductive and draining. “It’s too much stress in my life.”

Speakers and panelists painted incivility with a broad brush to include more than off-putting demeanor in depositions or court. Tactics such as late discovery, repeated delays and onerous demands for depositions all fit the definition.

John O. Feighner, a trial lawyer with Haller & Colvin in Fort Wayne, recalled a personal injury trial in which an opposing counsel’s firm engaged in such tactics, including missed hearings and a last-minute canceling of mediation. He termed such behavior “a lack of civility shown to the court.”

“I’ll never, ever trust that law firm,” he said.

John Trimble, a defense attorney with Lewis Wagner who moderated the panel discussion, said trial and defense attorneys can agree without being disagreeable, and he noted his opposition in cases with Feighner as an example.

“We’ve had some pretty adversarial cases; we’ve never had a moment of incivility,” Trimble said.

But panelists agreed that the digital age has fostered incivility. Email provides a sometimes unwitting opportunity to dash off a note in the heat of the moment that may impart a less-than-civil tone.

“People, including me, will say things in an email they wouldn’t say if they waited a couple of days,” said DTCI President Lonnie Johnson, a partner with Clendening Johnson & Bohrer in Bloomington who participated in the panel.

Palmer said he has a test he conducts before pressing the “send” button: “Would that be an email you’d want a judge to be reading?”

Two judges participated in the seminar and gave addresses: Indiana Justice Steven David and Larry McKinney, federal judge for the Southern District of Indiana.

David invoked the words of former United States Supreme Court Justice Sandra Day O’Connor: “Few Americans can even recall that our society once sincerely trusted and respected its lawyers.” “I submit we can get back there,” David said. “We cannot be lawyers like our clients see on television.”

McKinney said judges take note of attorneys who might not practice civility. Those who are more frequently called for pre-trial conferences, for example, are probably on that judge’s list.

“We know who you are,” McKinney warned.

Judges, through their authority, can keep proceedings civil. “When a judge has his hand on that case, everyone knows it,” he said.

David said loaded words an attorney directs toward opposing counsel can backfire. When he hears an attorney describe someone or something as “disingenuous,” for instance, “I basically turn to mute. … I shut off.”

il-civility-seminar06-2col.jpg Indiana Trial Lawyers Association representative Peter Palmer, left, and immediate past president John O. Feighner participate in a panel discussion on civility May 24 at Indiana University Robert H. McKinney School of Law. The ITLA and the Defense Trial Counsel of Indiana co-sponsored the first-of-its-kind seminar that featured addresses from Indiana Justice Steven David and Judge Larry McKinney of the U.S. District Court for the Southern District of Indiana. (IBJ Photo/ Perry Reichanadter)

Raising the rhetoric can raise the stakes, and incivility costs clients, several panelists said. One noted a case in which legal fees mounted to more than $1 million over a dispute valued at about $300,000.

Raised emotions and pitched litigation contribute to disputes that fail mediation. “Nobody ever wants to resolve a case that’s so involved with these emotional battles,” Trimble said.

Trimble is irritated by attorneys who argue to opposing counsel rather than arguing to the judge. He encountered an attorney who did that recently but suggested that ignoring such theatrics was the better course.

“I think it went a long way with the judge that I didn’t take the bait,” Trimble said.


 

Several panelists said there can be a fine line between legitimate legal tactics and acts that might be considered uncivil.

Defense attorney Donna Fisher, a principal with Smith Fisher Maas & Howard in Indianapolis, confessed that she had crossed that line in her career. She said she worried that she might have fit the characteristics of a take-no-prisoners “Rambo lawyer.”

“How do you balance the need to win with the need to be civil if ‘Rambo’ tactics give you an advantage?” she said. “I am concerned about the profession. I’m concerned that I’m not as civil as I could be . . . There are three rules of civility: Be kind, be kind, be kind.”

Several audience members suggested similar panels on civility in the legal profession be conducted around the state. Others wondered whether law schools might incorporate more instruction on civility.

McKinney said recommendations have been made for law schools to promote such studies.

“There is some pushback from the law schools because, ‘it’s just not academic enough,’” he said.

Feighner, immediate past president of the ITLA, played a key role in organizing the event.

“I was contacted by Lonnie Johnson, president of DTCI, and he in turn had been contacted by Justice David, who wanted to get a joint program supported by ITLA and DTCI to sponsor a civility seminar,” Feighner said.

The ITLA executive board unanimously endorsed the idea, and plans for the seminar were developed. He said it’s a first in recent times that the two associations jointly sponsored an event.

“What made this unique is it was kind of a statewide program and at the law school, which gave it special emphasis,” Feighner said.

“I fully expect that we’ll be talking with Justice David and our counterparts at DTCI to expand the presentation,” he said. “One of the ideas is to focus on law students and young lawyers in both ITLA and DTCI, as kind of a mentoring concept.”

For his part, David said he hopes to see a continuation of the dialogue between the two groups.

“I believe civility has to become the rule all the time and behavior that is not civil must be identified and changed, voluntarily or involuntarily. The client is better served. The profession is better served. The public is better served,” he said.

David said in his opening address that as a judge in Boone County, he insisted that the definition of civility be posted outside the courtroom door. His simple advice: always take the high road.

Attorneys who fail to do so, Trimble said, risk harm to their reputations and further damage to the profession.

“What we do to ourselves with incivility only helps the comedians,” he said.•
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  1. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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