Making the Legal World a Nicer Place

by: Nancy Sheehan

“Membership in the bar is a privilege burdened with conditions.  A fair private and professional character is one of them.”  These words were written by Justice Cardozo in 1917 and have been repeated many times since then in discussions about the need for civility and professionalism in the practice of law.  In an era when everyone is more on edge, more overloaded, and more stressed, the importance of good professional manners is at an all-time high.

The perception of lawyers as rude, argumentative, confrontational people is fueled by portrayals in the media.  “Boston Legal’s” Denny Crane may be very entertaining, but his behavior in depositions and court would hardly be condoned by any member of the bench.  Similarly, the smarmy tactics and denigration of opposing counsel engaged in by Jon Voight’s character in “The Rainmaker” did nothing to improve the public perception of attorneys. Rather, that behavior no doubt confirmed in the minds of many that we are on the whole a loathsome group.  Thanks to the Internet, examples of awful behavior by lawyers (and their clients) are easily accessible to the public.  They include the deposition of Aaron Wider in the GMAC Bank v. HTFC Corporation case where Mr. Wider used the “f-bomb” 73 times towards the deposing counsel while his own attorney sat back and snickered, and the “Texas Style Deposition” on You-Tube during which the attorneys told one another to “shut your mouth” and referred to each other as “fat boy” and “Mr. Hairpiece”.

There are occasions where this type of conduct is directed at women attorneys because of their gender.  In a 2007 New York case, a male attorney asked a female attorney why she was not wearing a wedding ring, and told her “this is not a white collar interview that you’re sitting here interviewing something with your cute little thing going on”, and referred to her as “hon”, which he later explained was a reference to Attila the Hun (Laddcap Value Partners LLC v. Lowenstein Sandler PC).  In a Florida case, the offending attorney called a female attorney a “bush leaguer” and told her that depositions are not conducted under “girl’s rules”.

Courts do not countenance such conduct and are quick to issue sanctions and orders designed to prevent future occurrences.  In the GMAC Bank case the court not only sanctioned Mr. Wider, but also his attorney for “sitting by idly as a spectator to Wider’s abusive, obstructive and evasive behavior” and speaking up only to incorrectly instruct his client not to answer a question or to dare opposing counsel to file a motion.  The attorney in the Florida case was placed on probation for two years and publically reprimanded by the state Supreme Court. In an inventive approach to lawyer bickering, a federal court judge ordered the two attorneys to meet at a neutral place and engage in the game of “rock, paper, scissors”; the victor was permitted to choose the location of the deposition that caused the dispute.  One hopes that the recipients of this ruling were chagrined enough to avoid bringing such issues back to court for resolution.

I am honored to be serving as the President of the Sacramento Valley Chapter of the American Board of Trial Advocates this year. ABOTA is an organization dedicated to preservation of the right to trial by jury and to promoting civility, integrity and professionalism in the practice of law.  Based on observations made during my 26 years of practice, I believe the vast majority of attorneys are polite, professional, hard-working individuals who abide by the rules of professional conduct and represent their clients zealously without crossing the line into incivility. Nonetheless, there is room for further improvement.

All ABOTA members agree to abide by its Code of Professionalism and Principles of Civility. Our members are litigators. However, the tenets set forth in the Code and the Principles apply equally to all aspects of the practice of law.  Some are based on the Golden Rule (do unto others as they would do unto you). Treat all other counsel, parties and witnesses in a courteous manner.  When calendar conflicts occur, accommodate counsel by rescheduling dates.  Agree to reasonable requests for extensions of time when doing so will not adversely affect your client’s interests. Some are based on common sense approaches to the practice of law that make life easier for all involved and keep client costs down. Stipulate to undisputed matters where it is obvious they can be proved and there is no good faith basis for not doing so. Make a good faith effort to resolve discovery and pleading issues without court intervention.  Some address so-called “Rambo” tactics.  Never use discovery or the timing of discovery as a means to harass opposing counsel.  Don’t be obstructive during a deposition.  Document production requests and interrogatories should be drafted to obtain information necessary to the prosecution or defense of the case, not to place an undue burden or expense on the responding party.  When responding to discovery requests, do not interpret them in an artificially restrictive manner so as to avoid disclosing discoverable items.  And finally, some are rules for survival. Be punctual and prepared for all court appearances.  If delay is unavoidable, call. Be respectful and courteous to judges, courtroom staff, court reporters and bailiffs.

Good habits are learned early in one’s life and career. We in ABOTA urge all seasoned attorneys to teach the values embodied in the Code of Professionalism and the Principles of Civility (as well as other sources of guidance such as the Sacramento County Bar Association Standards of Professional Conduct) to newer attorneys and to lead by example. As part of our mission to remove rudeness and “Rambo-ism” from the practice of law, ABOTA presents a program to law students called “Civility Matters” which emphasizes the point that you can be effective without being obnoxious.  Some students have expressed amazement at the fact that opposing counsel can vigorously advocate for their clients yet remain cordial with each other.  Our goal is to launch them into their new careers with the understanding that politeness, civility and a good sense of humor are attributes, not detriments.
We all have bad days and have said things in the heat of the moment that we later regret.  That is human nature and unlikely to change at any time in the near future.  However, if we  agree to quash the urge to make a nasty comment and not to respond in kind when boorish behavior  is directed at us, our professional world will be a nicer place.  Thank you!

(Nancy Sheehan is a partner at Porter Scott, where she practices employment litigation. She is a graduate of McGeorge School of Law and has been a member of ABOTA since 1999.  The Code of Professionalism and Principles of Civility referenced in this article are available for download at www.abota.org. Click on the publications tab).