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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. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

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  3. So if I am reading it right, only if and when African American college students agree to receive checks labeling them as "Negroes" do they receive aid from the UNCF or the Quaker's Educational Fund? In other words, to borrow from the Indiana Appellate Court, "the [nonprofit] supposed to be [their] advocate, refers to [students] in a racially offensive manner. While there is no evidence that [the nonprofits] intended harm to [African American students], the harm was nonetheless inflicted. [Black students are] presented to [academia and future employers] in a racially offensive manner. For these reasons, [such] performance [is] deficient and also prejudice[ial]." Maybe even DEPLORABLE???

  4. I'm the poor soul who spent over 10 years in prison with many many other prisoners trying to kill me for being charged with a sex offense THAT I DID NOT COMMIT i was in jail for a battery charge for helping a friend leave a boyfriend who beat her I've been saying for over 28 years that i did not and would never hurt a child like that mine or anybody's child but NOBODY wants to believe that i might not be guilty of this horrible crime or think that when i say that ALL the paperwork concerning my conviction has strangely DISAPPEARED or even when the long beach judge re-sentenced me over 14 months on a already filed plea bargain out of another districts court then had it filed under a fake name so i could not find while trying to fight my conviction on appeal in a nut shell people are ALWAYS quick to believe the worst about some one well I DID NOT HURT ANY CHILD EVER IN MY LIFE AND HAVE SAID THIS FOR ALMOST 30 YEARS please if anybody can me get some kind of justice it would be greatly appreciated respectfully written wrongly accused Brian Valenti

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