Civility in the Courtroom

I have four children.  Two are older.  For them, the parenting I was able to impart is in the rear view mirror.  I have two younger ones as well.  So, I’m getting a second chance at parenting.  Among the most important lessons I try to teach is to treat others as you would like to be treated, including saying “please” and “thank you” as much as possible.

I attended a christening at which the parish priest told the gathered that children watch us, very intently, and do what we do, not what we say to do.  Thus, he said, if we say one thing and do another, we teach our children that it is okay to be a hypocrite.

This is a very sobering lesson.  Do we always do what we teach?

In the world of high stakes litigation, it can be difficult to model the “please” and “thank you” behavior we teach at the dinner table.  For some lawyers or firms, personal attacks, sharp accusations, requests for sanctions and rough litigation tactics are common.  The problem can be compounded by clients who want a “bulldog” litigator, one who will seek victory through any tactic and at any cost.

I am convinced that striving to conduct oneself with the utmost civility is not only the right thing to do, but results in advantages to the client and ultimately to me.

Judges ascend to the bench only after decades of law practice.  They are, by definition, older and hopefully wiser.  They may be parents themselves.  They are overworked and underpaid for the sizeable dockets they are asked to manage.  My assumption is that if I make them read motion papers supported by a bunch of nasty emails, or act unprofessionally in their courtroom, I will come off to them like a child having a tantrum, possibly to the detriment of the case.  If I regularly take shrill and unreasonable positions on behalf of my client, I will teach the court that my client is shrill and unreasonable.  This is not a good result.

Sharp exchanges between counsel usually result in a breakdown in communications, and thus more time and money wasted in wrangling and motions over issues that could have been worked out civilly.  Running up the cost of the case rarely works to anyone’s advantage.  I try not to initiate sharp dialogue, and if I am the recipient I try not to respond in kind.  Sometimes this can bring down the heat of the conversations and restore a more productive approach.

Clients are entitled to strong advocacy, but this does not require, indeed this can be undermined by, sharp tactics.  I can act with the utmost professionalism and still strive for the best mastery of the facts and law when the time comes.  Client requests for “bulldog” litigation tactics can be a red flag.  Clients who insist on instructing counsel to refuse reasonable courtesies or suppress discoverable information also tend to be the ones who will never be satisfied with the outcome or your services.

It can be hard to strive for civility when those at the top vent anger and disdain.  I have been particularly disappointed in the language in recent Supreme Court decisions.  Reasonable minds can disagree whether the Constitution impels respect for gay marriage, but it was not necessary for the dissent to call the majority decision “pretentious,” “egotistic” and a product of “hubris.”  When the parents are having a food fight at the dinner table, the children aren’t learning the importance of “please” and “thank you.”

Treat others in the courtroom as you would be treated.  You will feel better and obtain better results.