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
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  4. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

ADVERTISEMENT