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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. 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

  2. Wow, over a quarter million dollars? That is a a lot of commissary money! Over what time frame? Years I would guess. Anyone ever try to blow the whistle? Probably not, since most Hoosiers who take notice of such things realize that Hoosier whistleblowers are almost always pilloried. If someone did blow the whistle, they were likely fired. The persecution of whistleblowers is a sure sign of far too much government corruption. Details of my own personal experience at the top of Hoosier governance available upon request ... maybe a "fake news" media outlet will have the courage to tell the stories of Hoosier whistleblowers that the "real" Hoosier media (cough) will not deign to touch. (They are part of the problem.)

  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

  5. A high ranking Indiana supreme Court operative caught red handed leading a group using the uber offensive N word! She must denounce or be denounced! (Or not since she is an insider ... rules do not apply to them). Evidence here: http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

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