November 2006

·                      Abusive and demeaning language.  When opposing counsel is being needlessly abusive, sit back and say, “Go ahead, get it off your chest. When you’re finished, I’ve something to add.” When opposing counsel states you do not belong in the practice of law, you do not know what you are doing, insults your law school, parentage, ethnicity, etc., slow down and speak more calmly than ever before.  Patience means idling your engine when you feel like stripping your gears. Your own self-esteem does not depend upon the affirmation or endorsement from this person, and no amount of argument will resurrect the downward spiral initiated by opposing counsel.

·                      Stomping of the foot over an evidentiary issue or ruling.  We can often anticipate when a particular piece of evidence will present a problem.  When the tirade comes from the other side, have prepared in your arsenal a typed, detailed response to the anticipated objection with the rules and case law, and read the same into the record.  The transcript will make you look like a star.  That transcript is money in the bank, and you will have delivered it in a manner befitting the courtroom.

Recently, the ABA Family Law Section adopted civility standards providing guidance for treatment of the client, opposing counsel, and the court.^[2]  If we look no further than the volume of standards under each section (ten for clients, eight for opposing counsel, and five for the court), apparently as a national group, our scorecard is the lowest when dealing directly with clients.

Establishing civil standards of practice is not new ground for family lawyers.  The AAML^[3] drafted “goals” for family lawyers in its Bounds of Advocacy.^[4]  It provides model rules for behavior, as well as comment and examples sections which provide a framework when facing everyday practice issues.  It has been adopted by the Eighth Judicial District as aspirational goals (EDCR 5.04), and member firms of the AAML are bound by these standards. 

As John F. Kennedy stated in his 1961 Inaugural Address: “Civility is not a sign of weakness, and sincerity is always subject to proof.” When you run across an opposing counsel about to derail his case with madness, step aside and let him pass.  Focusing on local commentary, Judge David Hardy of the Second Judicial District Court provides his own Top Ten list of civil standards for litigation: 

1.         Judges care most about a thorough understanding of the facts and a proper application of the law.  Judges care least about personality and professional disagreements between lawyers.  Personal and professional disagreements are unnecessary distractions to the courts.

2.         Return telephone calls and respond to letters.  Opposing counsel will surely blame you when given the opportunity.

3.         Write each letter as if it will become an exhibit within the court file.

4.         Court calendar time is scarce.  Identify issues in dispute and areas of agreement before entering the courtroom.  Judges will know when you do not, and appreciate it when you do.

5.         Win and lose with equal amounts of grace.

6.         Never mislead or deceive the court.

7.         Never mislead or deceive opposing counsel.

8.         Civility costs less money, which pleases most clients.

9.         The judiciary is an independent branch of government, yet it is without purse or sword.  It is legitimized by reciprocal dignity and respect.  Civility engenders dignity and respect.

10.       Civility facilitates frequent and meaningful communication between attorneys.  Frequent and meaningful communication is essential to pre-trial agreements and resolution.

As important as civility is to litigation, there is also a moneymaking aspect to civility, as promoted by our Canadian brethren.  We cull from our reading of Civility as a Strategy in Litigation: Using It as a Practical Tool by Eugene Meehan, Q.C., the following tips:

·                      To most judges, bad behavior makes bad advocacy. Discourtesy in delivery undermines an otherwise strong argument.  Instead of responding to the personal attack, respond only to the issues in the motion/refusal to answer/failure to satisfy an undertaking, or whatever is in issue.

·                      Incivility has a price - a real price.  Advocates using “Rambo” style intimidation eventually do so at their peril.  You become subject to possible sanctions for bad behavior, and also, an additional price will be paid by your client.  Close calls from the court will not go in your client’s favor because subtle distinctions in the law become lost when mired in the incessant fist-pounding.

·                      Civility in communications.  Every communication with opposing counsel is an opportunity for employing strategic civility. Lawyers and judges have long memories, and civility frames our common expectations about trust and respect in seeking resolutions.  Without mutual confidence, there cannot be an effective meeting of the minds as a way to resolve social disputes and problems.  Ultimately important, and ultimately strategic, is doing what is right regardless of the circumstances, which means not being deliberately derailed from your goal by what the other side does or does not do.

·                      Avoiding acrimonious language.  Do not automatically attribute bad motives or improper conduct to opposing counsel, unless well-founded and provable.  We need to distinguish between the act of a rude lawyer and the limit of another’s authority as the case progresses.  When that letter goes out to opposing counsel, hold back the, “If you bothered to research the matter . . .” You will not convince the opposing party their lawyer is bad; you are unlikely to convince the opposing lawyer their client is a jerk, simply by yelling it loudly. 

·                      Setting a flexible tone.  Make efforts to avoid scheduling conflicts, agree to reasonable requests for extensions, and do not attach unfair conditions.  Remember the basic rule “What goes around, comes around.”  Avoid complaints to the State Bar.  If that happens, even when vindicated, you will lose valuable billable hours responding to that complaint letter.  Judge Del Vecchio, a master of flexibility when he was in private practice, used to comment (well before he took the bench in Clark County) “There is generally as much money in settling cases as there is in going to trial, and you get to eliminate the risk in the outcome.”

·                      Dealing with stress.  One of the most effective ways of handling stress is simply to avoid creating stressful interactions with colleagues.  Strategic friendliness is a way of doing this.  Instead of wasting time trying to think of how best to create a detriment to the other side, consider what one lawyer has coined as an “ethic of care” which is described as considering the needs of all the parties involved when crafting a solution, rather than selecting a winner and a loser.

·                      Practical reasons why civility is important.  In movies, you can always spot bad acting; good acting seems effortless and natural.  Trial work is similar.  Real persuasion takes place when the reader or audience thinks the conclusion is her own idea. Your job as an advocate is to help the Judge find the right ideas herself that will lead her to decide the case your way.  Offer a reasoned solution to a problem during presentation.  The most important trick about good advocacy is discovering there is no trick. The more you hype, and the more you wheedle and urge, the more “sales resistance” you create, and the more you start to sound like the guy selling used cars on late-night television.

·                      Control your emotions/Never respond in kind.  As difficult as this may be, if you resort to similar conduct, you open yourself to countercharges and diminish your own credibility. Make a practice of preparing yourself in advance of the next communication and anticipate the situation. This will allow you to control your emotions and responses.

Civility is the most effective means of delivery in the courtroom, with both clients and opposing counsel.  We “judge the intent of the parties only by their words.”^[5]   Our best advice: dispatch your words with care.

Michael V. Kattelman and Robert Cerceo are members of the law firm of Silverman, Decaria & Kattelman, Chtd., an AV rated Martindale-Hubbell Bar Registered of Preeminent Lawyers firm.  Mr. Cerceo was recently awarded the 2006 Peacemaker of the Year Award from the Mediators of Southern Nevada, Inc.  Every lawyer in the firm is an experienced family law litigator at both the trial and appellate levels. Each member of the firm is a trained family law mediator, available statewide.