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Negotiating Civility: An Idea Whose Time Has Come

I was at a meeting of settlement officers for the U.S. District Court (Central District of California) last week when someone complained of a proposed rule change that attorneys would "game the system."  I said (snarkily) "is there any other way?" 

An early mentor told me:  anyone can win on the merits - it takes a great lawyer to win on procedure. 

That was the least of it.  Here are some other words of wisdom handed directly down to me from lawyers past:

you don't get paid to settle; you get paid to win

if the other side wants it, you don't; if you can't see how it will hurt you now, you haven't thought enough about it yet

we don't give extensions of time, period, ever; we make them regret the day they sued our clients (or defended theirs) 

come back with your sword or on it

make her cry (pre-deposition instruction about opposing counsel; I did; came back and said "don't ever ask me to do that again")

bury them in paper

bury it [the smoking gun document] in paper

object, object, object - the other side has to meet and confer anyway

I solicit more of this litigation oral tradition from my readers. 

Of course we "game" the system. Isn't that what our clients pay us to do?  To walk up to the line of wrong-doing; stop just short of it; and, make them regret the day . . . . Has it changed?  Here's what the State Bar of California would like litigators and their clients to do:  be civil.

RESOLUTION OF [_____________________________]
APPROVING AND ADOPTING CALIFORNIA ATTORNEY
GUIDELINES OF CIVILITY AND PROFESSIONALISM
RECITALS


A. As officers of the court with responsibilities to the administration of justice, attorneys have an obligation to be professional with clients, other parties and counsel, the courts and the public. This obligation includes civility, professional integrity, personal dignity, candor, diligence, respect, courtesy, and cooperation, all of which are essential to the fair administration of justice and conflict resolution.


B. Civility and professionalism have been affected by a number of factors, as a result of which there is a need for attorneys to recommit themselves to the principles of civility and professionalism.


C. On July 20, 2007, the Board of Governors of the State Bar of California adopted California Attorney Guidelines of Civility and Professionalism.


D. The Board of Directors of [________________] are of the unanimous opinion that the Guidelines will be of significant assistance in encouraging members of [________________] to continue to enhance their reputation and commitment to civility and professionalism.


RESOLUTION


The Board of Directors of [________________] hereby approves and endorses the California Attorney Guidelines of Civility and Professionalism and recommends that all members of [________________] commit to and agree to be guided by such
Guidelines.


Dated: _______________
[________________________]
By: _____________________
California

The full California State Bar "Civility Toolbox" here.

Comments (2)

Read through and enter the discussion by using the form at the end
Joe Markowitz - March 23, 2010 6:01 PM

I'm all in favor of civility and professionalism, but only because I think civility and professionalism are generally in my clients' interests. The kinds of tactics you are talking about tend to drive up expenses for both sides, without much purpose. They frequently backfire on you. So unless you think of litigation as some kind of siege, where your object is to make the litigation as expensive as possible for both sides until somebody cries uncle, and your client is somehow able to withstand that kind of treatment better than the other side for some reason, there is no benefit to forcing everyone to do everything the hard way. Most of the time, your client is in no better position to put up with unnecessarily painful or expensive litigation tactics any better than the other side, but sometimes clients do want to inflict pain on the other side, without realizing that the other side will cause at least the same amount of pain to them in return. (That is when you might have to talk your own client out of doing something that your client wants to do, but is not really in your client's interests.)

On the other hand, my highest obligation as an advocate is to represent my client zealously within the bounds of the law. So if I perceive a conflict between a code of civility and some advantage to my client in a lawsuit, I am virtually bound to interpret the code as narrowly as is legitimate to advance my client's interests. And that is the whole problem with codes of civility or codes of ethics or any other kind of codes. As you say, lawyers will always game the system. We are bound to do it by the most important principle of our own code of professional responsibility.

Ron White - March 23, 2010 11:08 PM

Lincoln said it best: "Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough." As a lawyer, Lincoln is remembered for his skill as well as his honesty and ethics. The finest lawyers I know are both civil and formidable. Ethics are never situational.

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