Another Effort for Lawyer Civility
By Dhyana Levey
Daily Journal Staff Writer
SAN FRANCISCO - Being a tough lawyer doesn't mean abandoning the lessons you learned in kindergarten: Be nice and treat others the way you'd like to be treated.
As simple as this sounds, some attorneys appear to have lost any ability to be civil to their opposing counsel - creating a downward spiral of insults and unpleasantness in the courtroom, according to a group of lawyers and judges who developed a traveling presentation to address these issues.
Building on a smaller program that fizzled at law schools last year, the American Board of Trial Advocates, or ABOTA, has brought in dispute resolution giant JAMS, San Francisco County Superior Court Presiding Judge James J. McBride and various law firms to create a new offering, teaching the do's and don'ts of civility in a legal setting.
For example: Don't curse at your opposing counsel if they say something you don't like. Do wait a day to send out that nasty e-mail you wrote, and then reread it to make sure it's appropriate.
Although the presentations will continue to make their rounds to law schools, organizers have decided young lawyers already working in the trenches of law firms and courtrooms need the education even more, said William B. Smith, Northern California ABOTA chapter secretary and chairman of the civility committee.
"You find lawyers sick of practicing law because they are sick of the way they treat each other," said Smith, a partner at San Francisco plaintiffs' firm Abramson Smith Waldsmith. "Our reputation is going down the drain because lawyers aren't acting like professionals. They are acting like babies."
Law firms and bar associations are now on the itinerary for the program, which offers a panel of judges, lawyers and neutrals discussing their own unpleasant run-ins with courtroom bullies. They show a short film with movie clips and other examples depicting attorneys gone bad and give suggestions on how to deal with or avoid becoming the stereotypical "evil lawyer."
The next presentation is scheduled to go before the Bar Association of San Francisco on Dec. 5.
Litigators who attack each other personally instead of just arguing their cases can delay proceedings and irritate judges, McBride said. And just because lawyers aren't misbehaving directly in front of judges, he added, doesn't mean judges don't know what's going on.
"Judges aren't fools," he said. "Incivility can lead to problems and obscure the real issues for the judge. Sometimes the judge spends a lot of time managing fights instead of disputes."
Drinker Biddle & Reath in San Francisco was the first to host this revamped civility program at its offices on Nov. 18.
H. Christian L'Orange, an attorney at the firm and an ABOTA member, said he opted to help organize the presentations and bring one to Drinker Biddle after participating in a similar program that was well received recently at the Marin County judges' annual dinner.
He said his firm has experienced its own problems with incivility.
"A number of the younger lawyers had reiterated certain altercations that happened in briefing and law and motion," L'Orange said. "So for us, it was to the point where the older lawyers thought it was paramount to bring it to the attention of the younger lawyers, saying, 'This is how bad it can get, and here's how you can tone it down.'"
Michael P. Pulliam, who joined Drinker Biddle as an associate in 2003, was surprised by what he described as "a series of discovery shenanigans" coming from his opposing counsel in a recent asbestos case.
Pulliam attempted to question the plaintiff about an inaccuracy in his employment history but was interrupted multiple times by the man's attorney, who made statements such as, "You blister his ass on that," according to court transcripts.
San Francisco County Superior Court Judge Katherine Feinstein called the exchange "shameful, absolutely shameful" and issued an order to show cause regarding sanctions over the attorney's conduct in the deposition.
Pulliam said having a civility presentation at his firm was helpful because attorneys forget that they can actually hurt their clients with overzealous advocacy that turns to rudeness.
"Obviously, you learn from who you work for," he said. "If you work for someone uncivil, you might learn uncivil behavior. But if you attend these presentations, it could help."
The programs are currently scheduled to take place only at Bay Area law firms, schools and bar associations, but ABOTA, a national organization, plans to expand them throughout its membership, Smith said.
JAMS is sponsoring the effort and offering neutrals to participate in the presentations because the principles of civility apply not only in trial, but in mediations and arbitrations, as well, said Jack McGlynn, a JAMS neutral assisting with the program.
"A lot of this you learned in kindergarten - how to be nice to each other," Smith said. "A lot of people have lost that in the competitive world."
dhyana_levey@dailyjournal.com
