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
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
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