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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. Good luck, but as I have documented in three Hail Mary's to the SCOTUS, two applications (2007 & 2013),a civil rights suit and my own kicked-to-the-curb prayer for mandamus. all supported in detailed affidavits with full legal briefing (never considered), the ISC knows that the BLE operates "above the law" (i.e. unconstitutionally) and does not give a damn. In fact, that is how it was designed to control the lawyers. IU Law Prof. Patrick Baude blew the whistle while he was Ind Bar Examiner President back in 1993, even he was shut down. It is a masonic system that blackballs those whom the elite disdain. Here is the basic thrust:https://en.wikipedia.org/wiki/Blackballing When I asked why I was initially denied, the court's foremost jester wrote back that the ten examiners all voted, and I did not gain the needed votes for approval (whatever that is, probably ten) and thus I was not in .. nothing written, no explanation, just go away or appeal ... and if you appeal and disagree with their system .. proof positive you lack character and fitness. It is both arbitrary and capricious by its very design. The Hoosier legal elites are monarchical minded, and rejected me for life for ostensibly failing to sufficiently respect man's law (due to my stated regard for God's law -- which they questioned me on, after remanding me for a psych eval for holding such Higher Law beliefs) while breaking their own rules, breaking federal statutory law, and violating federal and state constitutions and ancient due process standards .. all well documented as they "processed me" over many years.... yes years ... they have few standards that they will not bulldoze to get to the end desired. And the ISC knows this, and they keep it in play. So sad, And the fed courts refuse to do anything, and so the blackballing show goes on ... it is the Indy way. My final experience here: https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert I will open my files to anyone interested in seeing justice dawn over Indy. My cases are an open book, just ask.

  2. Looks like 2017 will be another notable year for these cases. I have a Grandson involved in a CHINS case that should never have been. He and the whole family are being held hostage by CPS and the 'current mood' of the CPS caseworker. If the parents disagree with a decision, they are penalized. I, along with other were posting on Jasper County Online News, but all were quickly warned to remove posts. I totally understand that some children need these services, but in this case, it was mistakes, covered by coorcement of father to sign papers, lies and cover-ups. The most astonishing thing was within 2 weeks of this child being placed with CPS, a private adoption agency was asking questions regarding child's family in the area. I believe a photo that was taken by CPS manager at the very onset during the CHINS co-ocerment and the intent was to make money. I have even been warned not to post or speak to anyone regarding this case. Parents have completed all requirements, met foster parents, get visitation 2 days a week, and still the next court date is all the way out till May 1, which gives them(CPS) plenty of to time make further demands (which I expect) No trust of these 'seasoned' case managers, as I have already learned too much about their dirty little tricks. If they discover that I have posted here, I expect they will not be happy and penalized parents again. Still a Hostage.

  3. They say it was a court error, however they fail to mention A.R. was on the run from the law and was hiding. Thus why she didn't receive anything from her public defender. Step mom is filing again for adoption of the two boys she has raised. A.R. is a criminal with a serious heroin addiction. She filed this appeal MORE than 30 days after the final decision was made from prison. Report all the facts not just some.

  4. Hysteria? Really Ben? Tell the young lady reported on in the link below that worrying about the sexualizing of our children is mere hysteria. Such thinking is common in the Royal Order of Jesters and other running sex vacays in Thailand or Brazil ... like Indy's Jared Fogle. Those tempted to call such concerns mere histronics need to think on this: http://www.msn.com/en-us/news/us/a-12-year-old-girl-live-streamed-her-suicide-it-took-two-weeks-for-facebook-to-take-the-video-down/ar-AAlT8ka?li=AA4ZnC&ocid=spartanntp

  5. This is happening so much. Even in 2016.2017. I hope the father sue for civil rights violation. I hope he sue as more are doing and even without a lawyer as pro-se, he got a good one here. God bless him.

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