Litigators

What Happened To Civility?

We, as professionals, can do better.

By Andrew C. Bershtein  
on

(Image via Getty)

On my commute home last night to Cliffside Park, New Jersey (yes, I am one of those bridge and tunnel lawyers and no, I do not live on a specific exit off the Garden State Parkway), I was flipping through an Instagram page dedicated to memes about practicing law and attorney lifestyles, when I came across a seemingly lighthearted post. The post documented an outrageous interaction that the meme creator experienced in his recent litigation practice — the piece related to the signature block of an extremely busy attorney who would only answer calls for 30 minutes per day. I am sure most of you have already seen it. This got me thinking: Why does our profession not only tolerate but empower bad-temperedness? Civility is quickly fading in civil practice.

I have said it before, and I will say it again, the best and worst advice I have ever received from a supervising attorney: “If the law is on your side, argue the law. If the facts are on your side, argue the facts.” This is where the expression should stop, but it does not. “If neither the law nor the facts are on your side, yell louder than the other guy.” Our profession, which requires years of education and a documented history of a high ethical standard, prides itself on resolving matters for our clients in a civilized and intellectual manner. Yet our relations with our adversaries has devolved.

Spend a few hours in the hallways of 141 Livingston and you will swear that lawyers are paid to yell at each other rather than advocate for their clients. Fortunately, this is not the case in all courthouses, but even in the federal courts, civility is losing ground to underhanded tactics and routine abuse of adversaries.

Consider some of the worst abuse you have experienced at the hands of opposing counsel. More likely than not, you have a story about the adversary who made your blood boil. Now think whether the outcome of that case changed in any way due to opposing counsel’s behavior — it likely did not. As previously discussed, it is usually the facts that decide outcomes of cases. So why was such behavior necessary or appropriate in that scenario?

One of my colleagues and I were recently discussing some of the more boorish behavior we have experienced in the field. A few of the stories included a firm whose litigation practice resulted in opposing counsel being fired by his client, much to the delight of that firm; an attorney who would routinely notice motions for the day before court observed holidays so as to inconvenience opposing counsel; and a firm that made a practice of scheduling depositions for Friday afternoons to force additional fees to be incurred when out-of-state opposing counsel would inevitably need to stay over the weekend to conclude the deposition on the following Monday.

While these practices, and many like them, are on the border of what is permissible by our ethical duties, there is a deeper issue underlying them. Whether the root cause of this discourtesy is a lack of empathy among members of the legal profession, or a misguided belief that such actions somehow benefit our client’s goals — which they do not — the fact remains that we, as professionals, can do better.

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Andrew C. Bershtein was an attorney at Balestriere Fariello, a trial and investigations law firm which represents clients in all aspects of complex commercial litigation and arbitration from pre-filing investigations to trial and appeals. You can reach firm partner John Balestriere at john.g.balestriere@balestrierefariello.com.

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