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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. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  2. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  3. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  4. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  5. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

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