Courting civility

Lawyers behaving badly give the profession a black eye, but nurturing civility among opposing litigators can repair the damage, trial and defense attorneys agreed in a rare joint seminar.

The Indiana Trial Lawyers Association teamed with the Defense Trial Counsel of Indiana for the seminar and panel discussion “Two Parties … One Oath: A Conversation on Civility” May 24 at the Indiana University Robert H. McKinney School of Law in Indianapolis.

Peter D. Palmer, a New Albany trial lawyer and partner at Palmer Thompson Law who concentrates on medical malpractice, said he has a simple and effective strategy for uncivil opposing counsel.

“I like to kill them with kindness,” Palmer said. Engaging bitterness or participating in gamesmanship is counterproductive and draining. “It’s too much stress in my life.”

Speakers and panelists painted incivility with a broad brush to include more than off-putting demeanor in depositions or court. Tactics such as late discovery, repeated delays and onerous demands for depositions all fit the definition.

John O. Feighner, a trial lawyer with Haller & Colvin in Fort Wayne, recalled a personal injury trial in which an opposing counsel’s firm engaged in such tactics, including missed hearings and a last-minute canceling of mediation. He termed such behavior “a lack of civility shown to the court.”

“I’ll never, ever trust that law firm,” he said.

John Trimble, a defense attorney with Lewis Wagner who moderated the panel discussion, said trial and defense attorneys can agree without being disagreeable, and he noted his opposition in cases with Feighner as an example.

“We’ve had some pretty adversarial cases; we’ve never had a moment of incivility,” Trimble said.

But panelists agreed that the digital age has fostered incivility. Email provides a sometimes unwitting opportunity to dash off a note in the heat of the moment that may impart a less-than-civil tone.

“People, including me, will say things in an email they wouldn’t say if they waited a couple of days,” said DTCI President Lonnie Johnson, a partner with Clendening Johnson & Bohrer in Bloomington who participated in the panel.

Palmer said he has a test he conducts before pressing the “send” button: “Would that be an email you’d want a judge to be reading?”

Two judges participated in the seminar and gave addresses: Indiana Justice Steven David and Larry McKinney, federal judge for the Southern District of Indiana.

David invoked the words of former United States Supreme Court Justice Sandra Day O’Connor: “Few Americans can even recall that our society once sincerely trusted and respected its lawyers.” “I submit we can get back there,” David said. “We cannot be lawyers like our clients see on television.”

McKinney said judges take note of attorneys who might not practice civility. Those who are more frequently called for pre-trial conferences, for example, are probably on that judge’s list.

“We know who you are,” McKinney warned.

Judges, through their authority, can keep proceedings civil. “When a judge has his hand on that case, everyone knows it,” he said.

David said loaded words an attorney directs toward opposing counsel can backfire. When he hears an attorney describe someone or something as “disingenuous,” for instance, “I basically turn to mute. … I shut off.”

Raising the rhetoric can raise the stakes, and incivility costs clients, several panelists said. One noted a case in which legal fees mounted to more than $1 million over a dispute valued at about $300,000.

Raised emotions and pitched litigation contribute to disputes that fail mediation. “Nobody ever wants to resolve a case that’s so involved with these emotional battles,” Trimble said.

Trimble is irritated by attorneys who argue to opposing counsel rather than arguing to the judge. He encountered an attorney who did that recently but suggested that ignoring such theatrics was the better course.

“I think it went a long way with the judge that I didn’t take the bait,” Trimble said.

 

Several panelists said there can be a fine line between legitimate legal tactics and acts that might be considered uncivil.

Defense attorney Donna Fisher, a principal with Smith Fisher Maas & Howard in Indianapolis, confessed that she had crossed that line in her career. She said she worried that she might have fit the characteristics of a take-no-prisoners “Rambo lawyer.”

“How do you balance the need to win with the need to be civil if ‘Rambo’ tactics give you an advantage?” she said. “I am concerned about the profession. I’m concerned that I’m not as civil as I could be . . . There are three rules of civility: Be kind, be kind, be kind.”

Several audience members suggested similar panels on civility in the legal profession be conducted around the state. Others wondered whether law schools might incorporate more instruction on civility.

McKinney said recommendations have been made for law schools to promote such studies.

“There is some pushback from the law schools because, ‘it’s just not academic enough,’” he said.

Feighner, immediate past president of the ITLA, played a key role in organizing the event.

“I was contacted by Lonnie Johnson, president of DTCI, and he in turn had been contacted by Justice David, who wanted to get a joint program supported by ITLA and DTCI to sponsor a civility seminar,” Feighner said.

The ITLA executive board unanimously endorsed the idea, and plans for the seminar were developed. He said it’s a first in recent times that the two associations jointly sponsored an event.

“What made this unique is it was kind of a statewide program and at the law school, which gave it special emphasis,” Feighner said.

“I fully expect that we’ll be talking with Justice David and our counterparts at DTCI to expand the presentation,” he said. “One of the ideas is to focus on law students and young lawyers in both ITLA and DTCI, as kind of a mentoring concept.”

For his part, David said he hopes to see a continuation of the dialogue between the two groups.

“I believe civility has to become the rule all the time and behavior that is not civil must be identified and changed, voluntarily or involuntarily. The client is better served. The profession is better served. The public is better served,” he said.

David said in his opening address that as a judge in Boone County, he insisted that the definition of civility be posted outside the courtroom door. His simple advice: always take the high road.

Attorneys who fail to do so, Trimble said, risk harm to their reputations and further damage to the profession.

“What we do to ourselves with incivility only helps the comedians,” he said.•