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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. Why are all these lawyers yakking to the media about pending matters? Trial by media? What the devil happened to not making extrajudicial statements? The system is falling apart.

  2. It is a sad story indeed as this couple has been only in survival mode, NOT found guilty with Ponzi, shaken down for 5 years and pursued by prosecution that has been ignited by a civil suit with very deep pockets wrenched in their bitterness...It has been said that many of us are breaking an average of 300 federal laws a day without even knowing it. Structuring laws, & civilForfeiture laws are among the scariest that need to be restructured or repealed . These laws were initially created for drug Lords and laundering money and now reach over that line. Here you have a couple that took out their own money, not drug money, not laundering. Yes...Many upset that they lost money...but how much did they make before it all fell apart? No one ask that question? A civil suit against Williams was awarded because he has no more money to fight...they pushed for a break in order...they took all his belongings...even underwear, shoes and clothes? who does that? What allows that? Maybe if you had the picture of him purchasing a jacket at the Goodwill just to go to court the next day...his enemy may be satisfied? But not likely...bitterness is a master. For happy ending lovers, you will be happy to know they have a faith that has changed their world and a solid love that many of us can only dream about. They will spend their time in federal jail for taking their money from their account, but at the end of the day they have loyal friends, a true love and a hope of a new life in time...and none of that can be bought or taken That is the real story.

  3. Could be his email did something especially heinous, really over the top like questioning Ind S.Ct. officials or accusing JLAP of being the political correctness police.

  4. Sounds like overkill to me, too. Do the feds not have enough "real" crime to keep them busy?

  5. We live in the world that has become wider in sense of business and competition. Everything went into the Web in addition to the existing physical global challenges in business. I heard that one of the latest innovations is moving to VDR - cloud-based security-protected repositories. Of course virtual data rooms comparison is required if you want to pick up the best one.

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