ILNews

DTCI: What happened to practicing ‘civil’ litigation?

Back to TopCommentsE-mailPrintBookmark and Share

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.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
2015 Distinguished Barrister &
Up and Coming Lawyer Reception

Tuesday, May 5, 2015 • 4:30 - 7:00 pm
Learn More


ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. why is the State trying to play GOD? Automatic sealing of a record is immoral. People should have the right to decide how to handle a record. the state is playing GOD. I have searched for decades, then you want me to pay someone a huge price to contact my son. THIS is extortion and gestapo control. OPEN THE RECORDS NOW. OPEN THE RECORDS NOW. OPEN THE RECORDS NOW.

  2. I haven't made some of the best choices in the last two years I have been to marion county jail 1 and two on three different occasions each time of release dates I've spent 48 to 72 hours after date of release losing a job being denied my freedom after ordered please help

  3. Out here in Kansas, where I now work as a government attorney, we are nearing the end of a process that could have relevance in this matter: "Senate Bill 45 would allow any adult otherwise able to possess a handgun under state and federal laws to carry that gun concealed as a matter of course without a permit. This move, commonly called constitutional carry, would elevate the state to the same club that Vermont, Arizona, Alaska and Wyoming have joined in the past generation." More reading here: http://www.guns.com/2015/03/18/kansas-house-panel-goes-all-in-on-constitutional-carry-measure/ Time to man up, Hoosiers. (And I do not mean that in a sexist way.)

  4. This is why it is important to consider Long term care insurance. For you and for your loved ones

  5. I am terrified to see Fracking going on not only in Indiana but in Knox county. Water is the most important resource we have any where. It will be the new gold, and we can't live without it and we can live without gold. How ignorant are people?

ADVERTISEMENT