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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. This guy sounds like the classic molester/manipulator.

  2. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  3. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  4. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  5. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

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