Old Lady Lawyer: Uncivil Procedure

What is some of the worst behavior you've witnesses by attorneys?

By now, I am confident that most, if not all, lawyers, are sick to death hearing about civility, the need for it, the lack thereof, the “play nice,” the civility language included in the California bar admission oath, and so on. However, if we lawyers were civil to each other, then we wouldn’t need yet another published California appellate opinion on this point.

The Second District Court of Appeal, Division Six, which includes Ventura and Santa Barbara counties, ocean-facing communities just north of Los Angeles, has taken an attorney to task for uncivil behavior that, in the court’s opinion, made prior reported opinions on civility, or lack thereof, look like models of decorum.

I am sure we all have various horror stories about nastiness at depositions, opposing counsel snarling at each other and the clients. Yelling, shouting, tossing papers, the usual deposition behavior, but I bet few of us have encountered the facts that the appellate court saw in Crawford v. JP Morgan Chase Bank N.A.

Raise your hand if you have done or would do the following: point a can of pepper spray approximately three feet away from opposing counsel’s face at a deposition, tell counsel that you had brought what is legally pepper spray and say “I will pepper spray you if you get out of hand.” (Define “out of hand” in the context of a deposition. That is definitely a factual question.)

How many of you have then produced a stun gun, pointed it at opposing counsel’s head and said “If this doesn’t quell you, this is a flashlight that turns into a stun gun” and then discharged the stun gun close to opposing counsel’s face? Let’s see that show of hands. Don’t be bashful; no one can see you… yet.

What? None of you? Really? Good for you. In fact, kudos to each and every one of you because this is what truly happened, and no, I am not making this up. Just when you think that you’ve heard everything about civility and its lack, some case comes along that astonishes you. What was plaintiff’s counsel thinking? This was not an inexperienced baby lawyer at work here.

Defense counsel who was confronted with first the pepper spray and then the stun gun terminated the deposition and moved for terminating sanctions. Guess what? The trial court granted them and the appellate court agreed, saying that it would have been an abuse of discretion not to grant them.

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However, it’s nice to know that uncivility is not limited to opposing counsel. Yes, even the judiciary gets into the act. Exhibit 1: the Florida state judge who was tossed from the bench after, among other things, challenging a public defender to a fistfight. Let’s see; is this the practice of law or the Wild West redux? Is this now law and disorder? Is this disorder in the court?

Another example: People v. Arno (1979). Just jump to footnote 2 and figure it out. When this opinion was published (and I am using Mr. Peabody and his Wayback Machine) that footnote created quite a stir.

Do you think these examples have something to do with location? Southern California? Florida? Perhaps too much sun frying brains, assuming for discussion that there are brains, and that could be assuming facts not in evidence.

What is wrong with us? What prompts attorneys (and judges) to act out in such ways? What lessons did we not learn or still haven’t learned? What does nastiness, challenging other counsel to duke it out not just verbally, which we are all good at, but physically, have anything to do with whether we’re good lawyers? See Joe Patrice’s recent article for more colloquies (that’s not the right word, but I’m trying to be polite) at deposition.

If the American Bar Association, which promoted Love Your Lawyer Day (I still can’t type that without laughing), wants the general public to love us (I would settle for respect, rather than love), then perhaps we lawyers need to set the example. I am certainly not suggesting kumbaya moments (ick), but I am suggesting that if lawyers show a little respect for each other, then perhaps that might just rub off on the clients as well. How many of us have had clients that have come to blows, actual or otherwise? (One reason why I never start with a joint session at a mediation). How many times do lawyers model client behavior, rather than modifying client behavior? Is bullying any different in the legal profession than on the playground? Is this “my lawyer can beat up your lawyer?”

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So, since I believe that interactive column participation is the best, can you top the Crawford case? What’s the worst conduct you’ve ever seen at a deposition? You can’t use Joe Patrice’s article, although it will show that you do read ATL. (You can even rat yourself out, if you’re not too embarrassed.) Please email me at oldladylawyer@gmail.com with your stories, and if printable, I’ll share some of them in a future column, protecting the identities of the guilty.

Lawyers and judges behaving badly confirm that truth really is stranger and more bizarre than any fictional character. If you don’t believe me, just Google “lawyers behaving badly” and “judges behaving badly.” Feel free to take your pick of the numerous websites that pop up.


Jill Switzer is closing in on 40 (not a typo) years as a active member of the State Bar of California. Yes, folks, California, that state west of the Sierra Nevada, which everyone likes to diss. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see old lawyers, young lawyers, and those in-between interact — it’s not always pretty. You can reach her by email at oldladylawyer@gmail.com.