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DTCI: DTCI and ITLA join forces to encourage civility

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dtci-johnson-lonnieThe Defense Trial Counsel of Indiana and the Indiana Trial Lawyers Association have joined to present a seminar on civility at the Indiana University Robert H. McKinney School of Law on May 24 titled “Two Parties…One Oath – A Conversation on Civility.” Justice Steven H. David of the Indiana Supreme Court and Judge Larry J. McKinney of the United States District Court of the Southern District of Indiana, both tireless advocates of civility, are featured speakers and will be joined by DTCI’s John Trimble and Donna Fisher and ITLA’s John Feighner and Peter Palmer.

As the title suggests, the program will consist of a frank discussion on concepts of civility in Indiana and an exchange of ideas on how to enhance civility. The program’s theme is derived from our Oath: “I do solemnly swear and affirm that … I will abstain from offensive personality and advance no fact prejudicial to the honor or reputation of a party or witness ...” Indiana Admission and Discipline Rule 22.

Members of the defense bar, the plaintiffs bar and the judiciary express concern over the erosion of civility in civil litigation. There are those who respond that the good old days were never quite that good. Indeed, century-old decisions cite to a lack of civility in the Indiana Bar: “Counsel has need of learning the ethics of his profession anew if he believes that vituperation and scurrilous insinuation are useful to him or his client in presenting his case.” Pittsburgh, C., C. St. L. Ry. Co. v. Muncie & Portland Traction Co., 77 N.E. 941 (Ind. 1906).

However, various studies and surveys provide empirical data that contemporary lawyers sense a decline in the level of civility in the practice of law. See “Final Report of the Committee on Civility of the Seventh Federal Judicial Circuit” (West 1992), reprinted in 143 F.R.D. 441 (1992) (42 percent of all attorneys felt incivility to be a problem). As a matter of unscientific clinical observation, nearly every civil litigator in Indiana whose practice spans three decades or more, if pressed, will cite a precipitous decline in civility as perhaps the most significant change in the practice of law. More important, those uniquely positioned to observe and critique the behavior of lawyers publicly comment on the decline of standards of civility in Indiana. U.S. Magistrate Judge V. Sue Shields of the Southern District is one of those uniquely positioned, and shortly before retiring from a historic career that spanned a good part of Indiana legal history, she commented on the state of civility in Indiana:

“The magistrate judge, having spent forty years as a judge in this state, recalls a time when law was practiced with civility and grace; a time when simple disputes were resolved by a telephone call and agreements between counsel were sealed with a handshake; a time when disputes not so resolved were brought before the court in a manner that minimized expense and strife, recognizing that reasonable people can, at times, reasonably disagree. As the instant dispute so clearly demonstrates, that time is no more. The magistrate judge mourns its passing.” Paul Harris Stores, Inc. v. Pricewaterhouse Coopers LLP, No. 1:02-CV-1014-LJM/VSS, slip op. at 1 (S.D. Ind. Jan. 31, 2005).

Scholars and practitioners alike maintain that civil litigation in particular has been infected by incivility. See Raymond M. Ripple, “Learning Outside the Fire: Need for Civility and Instruction in Law School,” 15 Notre Dame J.L. Ethics & Pub. Pol’y 359 (2001). The root causes of incivility are much debated. To many, the decline in civility in litigation is tied to incivility in society at large. As one judge informed the Committee on Civility:

“Today our talk is coarse and rude, our entertainment is vulgar and violent, our music is hard and loud, our institutions are weakened, our values are superficial, egoism has replaced altruism and cynicism pervades. Amid these surroundings none should be surprised that the courtroom is less tranquil.”

Academics tend to point to legal institutions that spawn conflicting notions of the concept of zealous advocacy within the adversary system of justice. As observed by Justice Brent E. Dickson of the Indiana Supreme Court, “numerous causes are likely: client expectations based on frequent media portrayal of excessively aggressive lawyer styles, increased competition from growing number of attorneys, increasing law firm size with resulting losses of senior partner mentoring and role modeling, new emphasis on advertising, increased number of colleagues with resulting relative anonymity and institutional incentives for aggressive utilization of procedure rules.” Brent Dickson, Julia Bunton Jackson, “Renewing Lawyer Civility,” 28 Val. U. L. Rev. 531 (1994).

Writing as the executive secretary of the Indiana Supreme Court Disciplinary Commission, Donald Lundberg addressed the amorphous nature of the duty of civility inherent in a higher calling and succinctly set forth the framework for thinking in terms of civility. See Donald R. Lundberg, “Zealotry v. Zeal: Thoughts about Lawyer Civility,” 51-DEC Res Gestae 32 (2007). As he writes, “It’s an odd thing, civility.” Lundberg instructs that being civil is not the same as being ethical. The Professional Rules of Conduct establish minimum standards of behavior, what it means to be merely compliant – ethical. Civility is a higher calling, requiring temperament and judgment in excess of obedience to black-letter rules. “Civility is part of the culture of law practice as defined ‘lawyer-by-lawyer, act-by-act.’ Everything we do as lawyers either adds to a culture that fosters civility or detracts from it.” Id. The meaning of civility is generally defined by legal observers as “treating opponents, litigants and judges with courtesy, dignity and kindness.” See “Learning Outside the Fire.” However, as Lundberg emphasizes, as applied to lawyers, “civility has more substance than the bland notion that you ought to be a nice person.” See “Zealotry v. Zeal,” *32.

Numerous Indiana opinions address the particulars of bad behavior and establish a broad framework for assessing the type of over-the-top antics deemed uncivil. As a starting point, throwing a soft drink cup at your opponent during a deposition and grabbing him “near or around his neck” is uncivil pursuant to Indiana’s legal culture or likely any culture. Matter of Alfred E. McClure, 652 N.E. 2d 864 (Ind. 1995). Likewise, unnecessarily embarrassing a party undermines the culture of civility. Linenburg v. Linenburg, 948 N.E. 2d 1193 (Ind. Ct. App. 2011). Attacks on the integrity and competence of counsel in court proceedings are viewed by courts as conduct violating Indiana’s culture of civility. Stewart v. Stewart, 474 N.E. 2d 1010 (Ind. 1985); Goodner v. State, 714 N.E. 2d 638 (Ind. 1999). Indiana courts also have become very sensitive to the incivility of static in briefing. In Amax Coal Co. v. Adams, 597 N.E. 2d 350, 352 (Ind. Ct. App. 1992), the Court of Appeals condemned at length the practice of including “launched rhetorical broadsides” in briefs as not only violative of the decorum of lawyers but inefficacious as well. Indeed, briefs “permeated with sarcasm and disrespect” are filled with “impertinent, intemperate, scandalous or vituperative language” are subject to the court’s power to order such briefs stricken. Lasater v. Lasater, 809 N.E. 2d 380 (Ind. Ct. App. 2004).•

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Mr. Johnson is a partner in the Bloomington firm of Clendening Johnson & Bohrer and is president of the Defense Trial Counsel of Indiana. The opinions expressed in this article are those of the author.
 

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  1. Applause, applause, applause ..... but, is this duty to serve the constitutional order not much more incumbent upon the State, whose only aim is to be pure and unadulterated justice, than defense counsel, who is also charged with gaining a result for a client? I agree both are responsible, but it seems to me that the government attorneys bear a burden much heavier than defense counsel .... "“I note, much as we did in Mechling v. State, 16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, that the attorneys representing the State and the defendant are both officers of the court and have a responsibility to correct any obvious errors at the time they are committed."

  2. Do I have to hire an attorney to get co-guardianship of my brother? My father has guardianship and my older sister was his co-guardian until this Dec 2014 when she passed and my father was me to go on as the co-guardian, but funds are limit and we need to get this process taken care of quickly as our fathers health isn't the greatest. So please advise me if there is anyway to do this our self or if it requires a lawyer? Thank you

  3. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  4. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  5. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

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