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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. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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