Civility requires communication2014 July
Over the last year, when I speak to attorney groups, I comment that if I could enact only one rule to deal with the challenges faced by the civil courts, it would be a very simple one: All attorneys must have a cup of coffee with their adversaries at the outset of the case.
Of course, if the attorneys want to wait until the appropriate time, the drink of choice could be a beer or glass of wine.
This is not a formal meeting in which the attorneys exchange evaluations of the lawsuit. Instead, the attorneys must talk about some personal stuff: mutual friends from law school; the schools where their children go; the Clippers or Kings; favorite gym; etc, etc.
Why? We need to break open the lines of communication between attorneys in a civil lawsuit and insist that communication start at the beginning of the case. Attorneys need to develop a personal relationship with each other − a personal relationship which makes it much more difficult to say no or ignore the other attorney or send a nasty e-mail.
If we are successful with this rule, we need to advance a critical ancillary rule: two attorneys cannot communicate by e-mail on any issue which may require a meet-and-confer conference. Instead, they must meet face to face or, only upon a showing of good cause, they may talk by telephone. This rule would put an end to attorneys cloaking themselves in the impersonal means of an e-mail which all too easily leads to strident and inflexible positions and personal attacks. It would also put an end to requiring judges to read through pages of e-mails that rarely cast an attorney in a good light and often seem sophomoric and gratuitous.
What do we accomplish by enacting these requirements? Attorneys actually know each other and, as a result, treat each other in a professional manner and with respect. Ideally, attorneys would naturally stop in the hallways of the courthouse to talk about something other than their current lawsuit. The “kick-off” cup of coffee would result in forming a foundation for a relationship and bonding before the pressures of the lawsuit kick in. As a result, it would become much more difficult to snub the other attorney. In addition, the attorneys would find it tougher to play hardball during the lawsuit; to say no to another month to respond to the interrogatories; to ignore telephone messages. This closer relationship would lead to the attorneys being better able to discuss settlement and resolve cases because they have a greater trust in their adversary.
Familiarity and contempt
Contrary to the old adage, familiarity does not breed contempt. Rather, in civil lawsuits familiarity facilitates open communication and cooperation. We constantly read articles which bemoan the fact that too many in our legislative branch no longer reach across party lines to communicate; many opine this lack of communication has led to an inability to compromise. We in the judicial branch must work hard to avoid succumbing to a belief that it is antithetical to compromise. We must reach across case lines so the plaintiff’s attorney talks with the defense attorney and vice versa.
Civility is a hot topic for many bar organizations that work hard at pointing out the need for civility. CAALA is one of a number of organizations which emphasizes civility at all events and in all publications. Unfortunately, civil judges will tell you that they do not feel that the message and lessons of civility are always finding their way into the courtroom.
Judges continue to see too many examples of disrespect and lack of cooperation which are invariably the result of a lack of meaningful and productive communication. For example:
• Attorneys file far too many motions to compel and other discovery motions where it is obvious that the attorneys are not communicating with each other and the meet-and-confer process is reflected in an exchange of lengthy letters or e-mails which become progressively vitriolic.• Attorneys are indifferent to opposing counsel’s personal issues (e.g., sick spouse, expert unexpectedly engaged in another trial).• A party files an amended complaint the day before the hearing on a demurrer or withdraws the motion the morning of the hearing, after the research attorney and judge have spent hours of work on the matter.• An attorney notices an ex parte hearing but does not appear for the hearing, without any attempt to tell opposing counsel.• Two attorneys snipe, sometimes yell, at each other during oral argument making it evident that when they appeared for the hearing, they clearly did not know each other.
In discussing the cause of the overabundance of demurrers, it is often the case that plaintiff’s attorneys point the proverbial finger at defense counsel. Yes, we have too many demurrers which are the result of an automatic response by defense counsel to file a demurrer with regard to certain causes of action or allegations and the ruling is most often to sustain the demurrer with leave to amend or to overrule entirely. It is also true that often the demurrer is the result of over-reaching by the plaintiff’s attorney: 13 causes of action are not often appropriate in every lawsuit and punitive damages are not warranted in all cases. If lawyers had started the lawsuit by sitting down to enjoy a libation of their choosing, it follows that with open lines of communication, both sides can work toward a compromise which may allow for an easy way to amend later in the case or recognition that the dispute cannot be resolved with the demurrer and a motion for summary judgment or a trial is necessary. The lesson is that achieving these agreements and efficiencies cannot occur without meaningful communication.
A practice that is not uncommon in the medical malpractice arena is a plaintiff naming a defendant in a medical malpractice lawsuit and when the defendant files a motion for summary judgment, not only does the plaintiff not oppose the motion, but he does not give advance notice of the non-opposition to opposing counsel or the court. This failure to communicate causes a valuable slot for a complicated motion in the Personal Injury hub courts’ Computer Reservation System to be taken which could have gone to another disputed motion. As a result, that other hearing must be heard later – again, the result of no communication.
Attorneys did not go to law school, and judges definitely did not seek to become judges, to deal with disputes created, or exacerbated by, personal differences or failures to communicate. Judges should be dealing with a complicated anti-SLAPP motion or a novel legal issue on a motion for summary judgment, not whether 117 of the 155 interrogatories are vague; whether the judge needs to rule on the same eight objections to each and every statement of undisputed fact – all 143 of them; or how to decide which attorney is telling the truth when both insist they called but the other attorney did not return the call. (These examples are true; the names have been withheld to protect the guilty. The substance of the dispute – and too many times the dialogue between the attorneys – makes the judge feel like she is on a car trip with her children and listening to them complain because “he is looking at me!”)
The majority of attorneys are extremely professional, trustworthy and reliable. But the reason that this article is necessary is because the number of attorneys, who refuse to communicate with the other side and display a fundamental disrespect for others, including the Court, is too high. We do not have the time to devote to their squabbles.
Think back to a case that you enjoyed litigating and that caused you little to no unneeded stress. It was most likely because you had a good relationship with opposing counsel that was defined by open communication. There is no doubt that a positive result of open communication and cooperation among attorneys is that everyone will experience less stress. Another positive result should be obvious. We are in the midst of an unprecedented financial attack on the courts resulting in a severe reduction of staff and courtrooms. This, in turn, has led to similarly unprecedented court congestion. In all the civil courts (Independent Calendar, Personal Injury, Limited Civil Jurisdiction, Unlawful Detainer, and Collections), we face delays of months for hearings on all types of motions. A simple solution is to significantly reduce the number of discovery motions, demurrers and other motions filed without any real communication between the attorneys. Judges uniformly believe that they would be able to schedule hearings much sooner if they were not forced to hear and decide so many motions which result primarily from no communication or cooperation among the attorneys. Of course, the Court can find other ways to reduce congestion, including ways to increase the number of courtrooms. However, that is the topic of another article.
Civility varies in civil and criminal courts
It is telling that judges who have sat in criminal courts are shocked by the difference in civility in the civil courts. Attorneys in a serious felony case, in which a defendant could lose his or her freedom for decades, invariably display the utmost cooperation, professionalism, and, yes, civility. Yet some attorneys in a limited jurisdiction civil case, with a potential award of $10,000 and $20,000 at most, cannot agree on whether the lights in the hallway were on or off before entering the courtroom.
One can consider a number of reasons for this difference between the criminal and civil attorneys but the best explanation is most criminal attorneys (prosecutors, public defenders, and private defense attorneys) work in the same courthouse every day, often in the same courtroom, where personal relationships are developed. As a result of this closer relationship, the attorneys have an expectation that others will be cordial and cooperative. The judges and staff members also expect everyone to be more cordial and cooperative.
This same level of cooperation can be found in the probate courts, in which the same situation exists – the attorneys appear in the same courtroom for many of their cases, which forces them to develop relationships with the attorneys on the other side of the case
To put it bluntly, it is far more difficult to be an ass when you have talked with the other attorney about his child’s college applications or the two of you have discussed your vacation plans or you will see her every day for the next year
Do not be misled into thinking that more civility means an attorney is failing to fully and aggressively represent her clients. Absolutely not! An attorney can at the same time advocate on behalf of one’s client based on applicable rules and laws, aggressively fight to advance the best interests of one’ client, and have a cooperative and professional relationship with opposing counsel. In other words, having a cup of coffee with opposing counsel takes nothing away from one’s ability to zealously represent one’ client. In fact, it is quite the opposite – conducting oneself in a professional and reasonable manner will most definitely result in cost savings to one’s client because the attorneys will not find themselves in court arguing about issues that could have been easily resolved without court intervention. And, as noted above, a cooperative relationship with opposing counsel will foster settlement.
Judges will also tell you that the most successful civil attorneys usually do not resort to the gamesmanship connected to a lack of civility. One reason is prominent lawyers often oppose the same attorneys. As a result, accountability is key. Conversely, many civil attorneys can appear in a number of cases, over several years, and not see the same attorney or judge. Because of this lack of accountability, it is easy to disregard civility. There are little to no consequences to bad behavior in this scenario.
The best way to “attract flies”
Judges and attorneys fully recognize the pressure on attorneys to deal with workload, billings, the need to keep the current client, and the importance of winning the case not only for the current client but also in order to develop future business. There is no question, however, that an attorney will realize more and consistent success by conducting oneself in a civil and honest manner. After all, we all know that you attract more flies with honey than with vinegar.
Think about what adjectives you use when you describe a judge that you like – reasonable, he listens and gives you time to make your argument, she lets you know what she is thinking. Invariably, she is cordial meaning that she did not yell or lose her cool. There is no reason that the same attributes cannot define an effective attorney who represents the interest of the client and gets good results.
Next time you are in the courthouse, take a couple of minutes to observe a good trial attorney. No doubt, you will see an attorney who is respectful to court staff, the judge, opposing counsel, and the jury, listens to the witness, and is attentive to the jury. There is no reason that attorneys should wait until a jury is present to conduct themselves in this manner. Attorneys should endeavor to be on their best behavior all the time.
Judges recognize the pressures of practicing law and are trying to facilitate cooperation and candor among attorneys. The court worked with several leading bar associations to develop the Voluntary Efficient Litigations Stipulations (“VELS”) which provide formal means to work out differences on demurrers, discovery disputes, motions in limine and other common disputes in civil litigation. The VELS are available on the Court’s Web site under “Tools for Litigators.”
Also, a growing number of judges are willing to participate in an informal discovery conference. (These “IDCs” are required in the PI courts when the dispute has to do with a motion to compel further discovery responses.) The judges who conduct these conferences will tell you that they seldom have to hear a motion after an IDC because the attorneys almost always resolve the dispute when they sit down in a room face-to-face and discuss the discovery issues. (One unfortunate observation by the judges is that usually these conferences are the first time the attorneys are speaking to each other.)
When the VELS were first promulgated and judges began to discuss them with attorneys at law firms or bar groups, judges were told that attorneys were hesitant to suggest using them because it would be viewed as a sign of weakness to be the first to raise the issue. This was very disturbing to hear. The fact that an attorney is afraid she will compromise her client’s position by agreeing on issues shows that we have sunk to a very low point. We must endeavor to have the courage to do what is right and that is to conduct ourselves in such a way as to foster communication, cooperation, and professionalism.
The Supreme Court of California recently recognized the epidemic of lack of civility. The oath that we took had us swear to support both the United States and California constitutions and that we would faithfully discharge the duties of an attorney to the best of our knowledge and ability. Based on a recommendation by the State Bar of California, the Supreme Court recently approved the addition of language regarding civility. As of May 23, 2014, new admittees will also have to promise to “conduct [themselves] at all times with dignity, courtesy, and integrity.” One can only hope that new attorneys adhere to this oath. The fact that the Supreme Court saw fit to amend the oath certainly speaks volumes regarding the demise of civility in the profession of law.
Judges fully recognize the talents of our civil bar. Most attorneys are professional and courteous toward the Court and their adversaries. We all are honored to work in the finest profession in the land. But quite simply, we all will benefit from more civility. The courts will run more smoothly, clients will be more satisfied because they will not be paying for needless litigation, attorneys will be less stressed, young attorneys will learn from positive role models, and we can look in the mirror and know that we are facilitating justice. The next time you attend a bar meeting, listen to the message of civility that is conveyed. And, instead of discarding the message as soon as the valet brings your car around, be bold and take the first step toward practicing the message of civility – after you know the name of the defense attorney, pick up the phone (note that I do not suggest sending an e-mail) and schedule a time to go get a cup of coffee with opposing counsel. If you opt for a beer instead, enjoy the talk.
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