Responding to Mark Herrmann’s post on the “unbearable darkness of partisanship,” and his plaintive question of “Am I the only one who can’t take it anymore,” the answer is no, Mark, you aren’t. I am right there with you. Mark wonders why we are where we are. Although Mark’s comments are focused on the political, the political is personal. See Exhibit A, the 2020 presidential election.
Partisanship just isn’t in politics anymore; it seeps into every nook and cranny of society, not the least of which is law practice. No one listens to differing points of view any more. People cover their ears, say “nah, nah, nah” (remember that stunt from childhood?), and blither away, regardless of whether their position is meritless or not. It’s no fun anymore, and yes, years ago, I thought law practice was fun, at least some of the time.
Continuing my harangue on the issue of partisanship, which I prefer to call civility, because you can disagree without being disagreeable (who said that?), a recent appellate opinion bench slapped appellate counsel for incivility. I can only guess that the appellate courts across the country are getting really pissed about the lack of civility (witness the number of bench slap stories in ATL), but I don’t know if it’s proper judicial decorum to say “pissed” in an opinion. It’s “rinse and repeat” all the time.
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The case arose out of a dispute about construction work on the plaintiff’s home. (Sound familiar?) Part of the dispute centered around the amount of attorney’s fees. (Sound familiar?) Plaintiff attorney and his wife were represented by counsel, but the plaintiff attorney spent a lot of time on the case for what the trial court considered “over-litigated” for the dollars at issue and the facts involved. Just as a surgeon should never operate on a family member, the appellate court found that the lawyer’s “embroilment undermined objectivity about the appropriate scale of litigation.” No kidding.
The appellate court noted the incivility in the plaintiff’s briefing in calling out opposing counsel as a liar. Never a pleasant word. Civility, the court held, is an aspect of skill, used to consider whether to adjust a lodestar. “Excellent lawyers deserve higher fees and excellent lawyers are civil. Sound logic and bitter experience support these points.”
If the attorneys are civil, then litigation can be resolved more efficiently and expeditiously, the court said, preaching to the choir. Name-calling and other devices putting sand in the gears of litigation only serves to increase costs and, shall I say, partisanship? And in a final bench slap, the court noted that “It is a salutary incentive for counsel in fee-shifting cases to know their own low blows may return to hit them in the pocketbook.” Message received.
What is gained by being offensive? The attorney’s personal involvement may have been the reason that the litigation ratcheted up so high. In any event, there’s a lesson here for all litigators. Bench slaps are becoming more frequent, as well they should. Any regular or even irregular ATL reader knows that.
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Zealous advocacy is what we lawyers are to do; the line between that and incivility should never be blurred. Just as our folks told us about the Golden Rule, remember that the same applies to lawyering. I certainly would never want to be called a liar in court documents, neither, I am sure, would anyone else. Once such a document is filed, it’s public record, out there for the public to see. Yes, I know about the litigation privilege, but existence of the privilege doesn’t salve the sting of such words. Whoever said that “words can never hurt you” is full of it. As cowboys in the old movies would say, “Them’s fighting words.” Indeed.
However, I do hold out a little bit of hope for the future of our profession. This past weekend, I was a volunteer judge in an intercollegiate mock trial competition through the auspices of the American Mock Trial Association. Who knew about this organization? I knew nothing until I volunteered, and I am so glad I did. These competitions showcase the best students in mock trials. They are the plaintiff lawyers, defense lawyers, and witnesses, switching roles within the context of the case they have been assigned.
It was a terrific experience. The students did first rate jobs in whatever roles they played. They knew how to present a case both in chief and on cross, how to object, what objections to raise, and the witnesses played their various roles to the hilt. Although it was a very long Zoom session (more than three hours) on a Sunday afternoon, it was well worth it.
What struck me was the civility and courtesy that the attorneys extended to each other and to the witnesses as well. No posturing, just questions back and forth. The various counsel in their various roles were firm, but never disagreeable. Jurors would probably have loved most, if not all, of the attorneys and the witnesses. And that was a point made by the volunteer presiding judge, a trial lawyer in the U.S. Attorney’s Office, who stressed the importance of civility. It’s a lesson that can’t be taught often enough.
While I would guess that some of the students will opt for other, less expensive professions, I hope that others will go on to law school and join us. Yes, I know the profession is crowded, but there is always room for excellence, and as we dinosaurs lumber off the stage, it would be nice to know that those who do choose to take our places may do so in spectacular fashion.
Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. 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 dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at [email protected].