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Civil Litigation

March 2, 2012

I have been thinking about civility lately.

At the UCLA Law School recently, I attended a presentation by John M. Lande from the University of Missouri School of Law on the subject of, and his paper on “Building Good Working Relationships with Opposing Counsel in Negotiation – Even if the Parties Have Extreme Positions or the Other Lawyer is a Rascal.”

Later, I looked at the Los Angeles Superior Court’s “Guidelines for Civility in Litigation” (Appendix 3.A of the Local Rules).

I even googled “civility” and came up with a page showing George Washington’s transcription of “Rules of Civility & Decent Behaviour In Company and Conversation,” the first of which is: “Every Action done in Company, ought to be with Some Sign of Respect, to those that are Present.”  (See, http://www.history.org/almanack/life/manners/rules2.cfm)

Why has civility attracted my interest of late?

Well, it’s because I have seen respectful, dignified, moderate professional behaviors by attorneys in mediation, and I have seen attorneys exhibiting the opposites as well.

Mediation can be a pressure-cooker for attorneys.  I realize this.  Each attorney has to balance his or her own expectations against the expectations of his or her client, against those of the other side, even against those of the mediator.

Thankfully, many realize that zealous advocacy does not require abominable, bombastic, bad behavior, as in yelling, cursing, gesturing obscenely, stomping about, disrespecting, acting out.

These lawyers, who realize the bad in all this, are the ones that frequently get the work done, hammer out a settlement and make the experience palatable for all … as opposed to miserable for all.

Some lawyers don’t work that way.

Perhaps they are having a bad day.  Possibly they have gotten caught up in the emotional turmoil of the litigants.  Maybe they are employing the old tit-for-tat strategy.  Maybe they have a client with unrealistic/unmanageable expectations.  Possibly they simply lack self-confidence.

Whatever the underlying reason for these behaviors, sometimes, not always, I, as mediator, can help manage the situation.

(Sometimes, as Professor Lande suggests, see above, the lawyer is simply a rascal or an S.O.B. who just lives his life this way.  Such a lawyer I cannot help.)

But sometimes, as mediator, I can take an attorney aside and ask if he or she really thinks this is working.

Or, I can offer an attentive ear, privately, for the lawyer to vent.

Or, I can simply suggest a break in the proceedings.

Ultimately, if it’s possible to do so, I can emphasize the obvious for the lawyer, that he or she is there to help the client resolve its problems not worsen them.  Sometimes, the gentle reminder is all that’s needed.

Thankfully, most often, such a reminder is never needed.

As I mentioned earlier, I have seen the most respectful, dignified, moderate but effective professionals in mediation, and I have seen the positive results that flow from such behaviors.

In such circumstances, I never have to think about civility.

But litigation is a tough practice, when all is said and done, and the stresses and strains reveal themselves in myriad ways.

And the best attorneys manage it well; and the others, almost all, can/do learn to do so.

In the final analysis, I am confident that professionalism in the practice is everyone’s goal.

It is civil litigation, isn’t it?

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From → Law, Mediation

2 Comments
  1. Well stated, David. I’m sitting down to review his book, “lawyering with planned early negotiation” this weekend. I wish I’d know. He was here in l.a. Thanks for the insight.

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  1. Civility and Its Opposites | The Blog of David I. Karp

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