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DTCI: What happened to practicing ‘civil’ litigation?

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DTCI donald smithIt is unusual to open a lawyers’ magazine without seeing an article about civility. What happened to “civil” litigation? It must be like the weather – a lot of people are writing about it, but no one seems to be doing anything about it.

My remarks are not based on scientific studies, and I have no empirical data to support them. My opinions are based solely on my own experience as I wander through this career based primarily on civil litigation.

We practice in a world that is becoming less and less personal. Rarely these days does an attorney meet with opposing counsel to discuss an issue. Instead, he snaps off an email, often riddled with abbreviations and misspellings. The message that comes across is that the attorney cares too little about his position in the case to contemplate what is being said, review it and send a carefully drafted message.

Please don’t get me wrong. I love that I can send emails back and forth efficiently; but emails lead to an impersonal approach to the practice of law.

A well-timed telephone call can be disarming, yet remain very civil. Recently – instead of receiving an email telling me that my client’s position was sanctionable and I was incompetent – I received a call from the opposing counsel. He happened to be older than I (which is getting rarer these days) and with a gentlemanly Southern drawl, he explained his client’s case and the position it was taking. The telephone conversation set the tone for our continued litigation. It was civil. Although we attacked our opponent’s positions, we never attacked our opponents.

Let’s contrast that approach with another recent incident. A case was set for hearing. The opposing attorney and I spoke briefly while we were waiting for our case to be called, but the attorney never said anything about wanting a continuance. It was only when we were before the judge that the attorney – for the first time – advised that his client wanted to testify, but he was not going to appear for the hearing that day. The attorney made no attempt to contact me about a continuance in advance of the hearing or even to advise me while we were waiting for our case to be called. That shows a lack of civility.

Another reason I believe lawyers are less civil to each other is that there is less time for mentoring new attorneys. During the recent economic crisis, fewer law school graduates were able to secure jobs, so they “hung a shingle” to practice by themselves. Although I admire the entrepreneurial spirit, I think it has resulted in a generation of attorneys who have become isolated, without mentors and co-workers to provide guidance. Mentors and co-workers help to temper a new lawyer’s primal instincts when it comes to litigating a case.

In addition, the economic pressures on both new attorneys and law firms have provided for fewer opportunities for new lawyers to accompany senior attorneys to depositions, conferences with clients or trials. I learned much about the practice of law from spending time with more senior attorneys and observing their interactions with other lawyers.

As the practice of law has become less personal, it is easier to attack the other attorney without considering the consequences. We all know attorneys who draw our ire with scathing emails only to find them suddenly civil when we are face-to-face. There used to be an emotional filter when an attorney dictated a letter that was typed by a secretary. It took time for the letter to be typed, so there was an opportunity for the lawyer to cool off before he received the dictation back from the secretary. It is now too easy for attorneys to send those nasty emails themselves while they are still upset.

Perhaps a final reason in my anecdotal examination of why litigators are not as civil to each other is the speed at which the practice of law now operates. Attorneys used to mail letters and could count on a few days before receipt. Then came the fax machine, which cut down the mailing time. Email later took hold for instantaneous communication. I am not saying these are bad developments, but they do lend themselves to the impersonal nature of the practice of law, which in turn leads to incivility.

So, the next time we have a case together, do not hesitate to pick up the phone and call me. If I do not pick up the call immediately, it is because I have been swamped by all of these emails that other attorneys are sending me.•

__________

Mr. Smith is a partner in Riley Bennett & Egloff LLP in Indianapolis and is a member of the DTCI board of directors. The opinions expressed here are those of the author.

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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