Hon. Cale J. BradfordIndiana Court of Appeals

Hon. Denise K. LaRueU.S. Magistrate Judge Southern

District of IndianaApril 23, 2015

CIVILITY IN A SOMETIMES UNCIVIL WORLD

What is Incivility?

• Rude behavior aimed at opposing counsel, client and Court

• Making unsupported accusations of improper motives against opponent

• Disrespecting the time/resources of others

• Violations of the Rules of Professional Conduct

Is This Model of Civility Expected?

Factors Contributing to Incivility

• Law practice viewed as a business vs. a profession

• Technology and the increased pace of life

• TV shows that glamorize “winning at all costs” and outdated belief in “zealous advocacy”

• Growth of the legal community• Fewer jury trials but increase in

discovery practice

Kays v. Penske Logistics, Inc., et al.,

1:03-cv-0735-SEB-VSS (S.D. Ind. Feb. 3, 2005)

• Even niggling quarrels command the Court’s time and attention in order to be resolved

• As officers of the Court, counsel have an obligation to follow the rules of practice and procedure “to a tee”

• When slip-ups occur, a “detached and professional colloquy between counsel is appropriate and should be undertaken”

IP Innovation L.L.C., v. Thomson, Inc.,

1:03-cv-0216-JDT-TAB (S.D. Ind. Apr. 8, 2004)

• Court felt “compelled to address a tone of incivility in Plaintiff’s submissions”

• The Court encourages strong advocacy, but Plaintiff’s “accusatory and combative approach does not further this objective”

Why Should We Embrace Civility?

• Not doing so hurts your client–Increased costs and fees–Delays resolution of the dispute–Less effective

Why Should We Embrace Civility?

• Hurts the Individual Lawyer–Destroys reputation–Adds unnecessary stress –Leads to disciplinary proceedings–Can be costly

Why Should We Embrace Civility?

• Hurts all of us–Lowers the image of the entire legal community–Negative impact on the public’s perception of obtaining justice

• “To me, the case for civility is overwhelming. I am unable to understand why one would abandon civility in favor of boorish, bullying, obnoxious, unfair behavior that is harmful to his reputation and in most instances, to the interests of his client. Not only does civility cost nothing, but it also holds the promise of sparking benefits.”--Gene W. Lafitte, former president of the American College of Trial Lawyers

28 U.S.C. § 1927

“Any attorney or other person admitted to conduct cases in any court…who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct”

Ind. Code § 34-52-1-1(1)

(b) In any civil action, the court may award attorney’s fees as part of the cost to the prevailing party, if the court finds that either party:– (1) brought the action or defense on a claim

or defense that is frivolous, unreasonable, or groundless;

– (2) continued to litigate the action or defense after the party’s claim or defense clearly became frivolous, unreasonable, or groundless; or

– (3) litigated the action in bad faith.

U.S. Dist. Ct. S.D. Ind. Local Rules

expect lawyers to confer….. • L.R. 6-1 Extensions of time;

• L.R. 7-1(g) Motions for fees, sanctions and disqualification;

• L.R. 30-1(d) Scheduling depositions;

• L.R. 37-1 Discovery disputes.

Indiana Trial Rules expect lawyers to confer…..

Informal Resolution of Discovery Disputes -Trial Rule 26(F):•Before any party files any motion or request to compel discovery pursuant to Rule 37, or any motion for protection from discovery pursuant to Rule 26( C), or any other discovery motion which seeks to enforce, modify, or limit discovery, that party shall:• (1) Make a reasonable effort to reach agreement with the opposing party[…]; and• (2) Include in the motion […] a statement showing that the attorney making the motion […] has made a reasonable effort to reach agreement with the opposing attorney(s) […]

Loparex, LLC v. MPI Release Technologies, LLC, 2011 WL 1871167 (S.D.

Ind. 2011)

An electronic ultimatum is not a good faith attempt to resolve a discovery dispute. Rather, the local rule contemplates an actual meeting with a date, time, and place---whether by telephone, videoconference, or (if counsel’s location permits) preferably face-to-face. An old-fashioned chat over coffee might prove especially productive.

Loparex, LLC v. MPI Release Technologies, LLC, 2011 WL 1871167 (S.D.

Ind. 2011)

…Real-time interaction often provides the best forum for hashing out disputes. Whereas a faceless exchange of carefully worded and often pointed emails usually solves little except perhaps providing a false moment of triumph to the person pressing the “send” button.

Indianapolis Bar AssociationStandards of Professionalism

• Commitment• Character• Competence• Courtesy• Community Involvement

Seventh Circuit Standards –

Four ComponentsLawyers’ Duties to Other CounselLawyers’ Duties to the CourtCourts’ Duties to LawyersJudges’ Duties to Each Other

“And do as adversaries do in law … strive mightily but eat and drink as friends.”

– William Shakespeare, The Taming of the Shrew

“Not too many Americans even remember that our society once actually trusted and respected lawyers.”

--U.S. Supreme Court Justice Sandra Day O’Connor

CIVILITY IN A SOMETIMES UNCIVIL

WORLDHon. Cale J. Bradford

Indiana Court of AppealsHon. Denise K. LaRue

U.S. Magistrate Judge Southern District of Indiana

April 23, 2015