Civility in Litigation –

Tactical Advantages

Colin E. KaufmanAdam Leitman Bailey, PCIn-Service CLE 9/3.2013

Rules of Professional Conduct

• Preamble – A Lawyer’s Responsibilities The First Words: A lawyer, as a member of the legal profession, is a representative of clients and an officer of the legal system with special responsibility for the quality of justice.

o The relative autonomy of the legal profession carries with it special responsibilities of self-governance. Every lawyer is responsible for observance of the Rules of Professional Conduct and also should aid in securing their observance by other lawyers.

o Failure to comply with an obligation or prohibition imposed by a Rule is a basis for invoking the disciplinary process.

What goes around comes around

• At some point in every litigation, you will be asking foro An extension of timeo An adjournmento A candid insight into the other sides case/contentions

• If you’re a jerk, don’t expect courtesies• We are not our clients. Zealous advocacy

does not require you to hate the other lawyer.

• Don’t ever confuse courtesy with weakness

General Areas

In CourtIn Deposition

In PapersIn Negotiations

In the Courtroom• The perception of substance is the substance• Who cares?

o Judgeo Juryo Court personnelo Opposing counselo Other lawyerso Client

Judge• Someone he doesn’t want to work with• Undependable• Implicit acknowledgement of case weakness• Can bring you up short

Jury• People don’t like rude people• Likeability is allied to credibility• Credibility is what we sell

Court Personnel• There will come a time when you want a favor• Some of us get them, some don’t

Opposing Counsel• Can I work with this guy?• Should I afford her courtesies?• How do I approach negotiation?• I’d really like to get her act in front

of a jury• Am I going to recommend him as

litigation counsel to a client/friend?

Other Lawyers• You are always being evaluated

o Potential opponento Potential ally / co-counselo Potential referral

Clients• Your client

o Is my lawyer effective• Tension between pit-bull and class act

o Is my lawyer someone who will get cooperation in settling

o Can my lawyer sell the case

• The other guy’s cliento Can my guy handle himo Will my lawyer be more or less attractive to a judge/juryo Would I use this woman for my next suit?

In Depositions• Better (and more defensible) record• Unlikely to have a walkout (and

potential for second deposition)• Not paying for pages of colloquy

(assuming you are taking the deposition)

• Most disciplinary cases arise from deposition practice

Unruly Opponent in Deposition

• My experience – if you are civil, usually the other side is alsoo Often incivility is tactical rather than due to a personality

defecto Don’t rise to the bait

• Handle your own problems if you cano Make a recordo Make sure off the record problems appear in the record

• If it gets out of hando Don’t be afraid to call the Courto If need be, walk out and make a motion

In Papers• Papers (motion and appeal) are there to

assist in determining points of lawo Not

• Whether someone is mean or overbearing• In general) whether someone should be sanctioned• (In general) whether Justice (with a capital “J”) is on your

side

• Judges generally disapprove of name-calling and appreciate a clean argument

• If you are going to move for sanctions, make your record facts and argument rock-solid

In Negotiations• Negotiations are built on

o Factso Risk/benefito Trust (and confidence/fear)

• Lawyers trade on credibility – Build yours

• Unless you settle today, there will be another round

• Our fraternity/sorority is small – you will meet your opponent again

Coda• You are a member of a profession not a

tradesman• You have obligations to:

o Cliento the Courto The civil justice system

• Ethically, civility is required; tactically, civility (in nearly every circumstance) helps your client and yourself