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DTCI: As attorneys, conflict is our business

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kalamaros-dtciThis is not a call for more “civility.” To be candid, I have heard that so many times from so many people that it has lost all significance to me. It’s not that I think the concept is bad. I think all people should be civil to one another, and most of the time, I believe lawyers are people. But the simple fact of the matter is that our business is adversarial. Lawsuits have at least two sides. Lawsuits are based on disagreement. Not all disagreements are going to be resolved without adjudication. Not all adjudications are going to satisfy the litigants. The litigation process itself is not a fertile ground for holding hands and sharing.

If the participants, be they lawyers, parties, witnesses or even mediators and judges are spirited, intense, opinionated or just plain competitive, chances are pretty likely that the case will not be a tea party with a poetry reading where everyone goes home with inner peace. The courts are not a place for justice. This is an imperfect system in an imperfect world. Dollar damages do not restore a loss to a plaintiff any more than zero judgment delivers absolution to a defendant. Justice comes only from God. That is the nature of the system, which by the way is not a benevolent process, but rather a business.

I think it is pretty well known that I am not always “civil,” as I believe the term is commonly defined. Besides being spirited, intense, opinionated and just plain competitive, I also have more personality quirks than there is room here to print. And so, it is no surprise that I am not one who believes that we need to focus on being more “civil.” What I believe is that we need to work on a lost standard of conduct that is far harder to restore, and far more elusive to describe. We all need to recommit to the fundamental tenant of being honorable servants of a worthy process. If we do that, civility will take care of itself.

It is a difficult concept to describe. I can only tell you that when I was a child, a teen and a law student, I watched my dad and other lawyers and judges of that era do their jobs. They were better examples of what I am talking about than we (myself included) are today.

My practice now spans half my life, and every year behavior in the legal profession has gotten worse. As a result of the degenerating standard of conduct, participants become less “civil,” and this is no surprise. Every year, more and more I see indicia:

• The increasing willingness of lawyers simply to lie. I do not mean artfully advocate, because I love to watch skillful advocacy, even when I am the one getting clobbered by it. I mean lie. Flat out saying “This is A” when it is B. I can’t help myself. I really don’t like that. I react to this “uncivilly” by indicating that the lawyer is either factually mistaken or lying. If it persists, I conclude “uncivilly” that the lawyer is a liar. Some would argue that if this occurs in open court I should report the lawyers to the disciplinary commission. But I don’t want the lawyers to be disciplined; I just want them to stop lying. I want the lawyers to be honorable servants of this worthy process by their own commitment to the tenant because it is the right thing to do. It would be fine with me if those same lawyers just got up and said, “Here is the testimony and I don’t like it or believe it and I don’t think the court should either and here are other facts to show why.” And, if the judge agreed with that position, that’s how it works. I do not accept the notion that lying is advocacy. To me it’s just lying. If a lawyer can’t take the position without lying, the lawyer needs to find something else to talk about.

• Cheating. Alter a photo and not tell anyone. Change an exhibit and not tell anyone. Leave out documents or change the order of production responses to hide things. Conceal a witness. Sandbag. I love and admire strategic practice. I hate cheaters. Amazingly, often the liars and cheaters don’t even need to lie or cheat to do well, and they still do.

• An increased willingness of judges to make rulings that do not follow the law but are result-oriented to compel a preferred outcome. Classic examples include denying a summary judgment to compel settlement or disliking a law enough to avoid applying it and obtaining a preferred result through other procedures. I think courts should be allowed to express their opinions on the direction of the matter. Express disagreement with the law, but let it take its course.

So, instead of calling for more civility, let me urge all of us to strive to be honorable servants of this worthy process. Let’s call for less lying. That way, we don’t have to call liars “liars.” Let’s call for less cheating. That way, we don’t have to call cheaters “cheaters.” Let’s call for fewer cheap shots. That way, we don’t have to call people “cheap shot artists.” Let’s call for a less-abusive litigation style. That way, we don’t have to call people “SOB litigators.” Let’s call for intellectual honesty. That way, we don’t have to call people “intellectually dishonest.”

Think of how much more civil it will be.•

__________

Mr. Kalamaros is a partner in Hunt Suedhoff Kalamaros and is a member of the DTCI Board of Directors. The opinions expressed in this article are those of the author.

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  • Advocacy Gone Wild
    Mr. Kalamaros is right here to re-frame the discussion not simply as a call for more "civility," but rather for a return to our "roots" or our "fundamental tenants" as lawyers. Where I struggle, however, is in defining exactly what those "fundamental tenants" are. To the author's credit, he also acknowledges the complexity and difficulty in tying those terms down, and provides his readers with some examples of what constitutes "uncivil" behavior. What each of those examples are, in my opinion, is symptoms of the underlying problem - the lack of respect certain members of the bar in every state seem to be fine with exhibiting towards one another, the courts, and the profession itself. A bit of a shameless plug here, but in a recent posting on my blog, "Dangerfield on Civility, Vol.1," (http://www.lawgicallyspeaking.com/dangerfield-on-civility-vol-1/), I discuss Kalaramos' article and his re-framing of the civility discussion, and hopefully add a bit more to the conversation, by addressing why and how we can encourage more civility in the practice by showing more respect and getting to know other members of the bar better. Thank you Mr. Kalamaros for taking the discussion beyond the usual "call for more civility" and actually identifying specific areas or behavior where we can focus on change and work on bringing back those "good 'ol days."

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  1. 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.

  2. 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.

  3. 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)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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