DTCI: As attorneys, conflict is our business

This is not a call for more “civility.” To be candid, I have heard that so many times from so many people that it has lost all significance to me. It’s not that I think the concept is bad. I think all people should be civil to one another, and most of the time, I believe lawyers are people. But the simple fact of the matter is that our business is adversarial. Lawsuits have at least two sides. Lawsuits are based on disagreement. Not all disagreements are going to be resolved without adjudication. Not all adjudications are going to satisfy the litigants. The litigation process itself is not a fertile ground for holding hands and sharing.

If the participants, be they lawyers, parties, witnesses or even mediators and judges are spirited, intense, opinionated or just plain competitive, chances are pretty likely that the case will not be a tea party with a poetry reading where everyone goes home with inner peace. The courts are not a place for justice. This is an imperfect system in an imperfect world. Dollar damages do not restore a loss to a plaintiff any more than zero judgment delivers absolution to a defendant. Justice comes only from God. That is the nature of the system, which by the way is not a benevolent process, but rather a business.

I think it is pretty well known that I am not always “civil,” as I believe the term is commonly defined. Besides being spirited, intense, opinionated and just plain competitive, I also have more personality quirks than there is room here to print. And so, it is no surprise that I am not one who believes that we need to focus on being more “civil.” What I believe is that we need to work on a lost standard of conduct that is far harder to restore, and far more elusive to describe. We all need to recommit to the fundamental tenant of being honorable servants of a worthy process. If we do that, civility will take care of itself.

It is a difficult concept to describe. I can only tell you that when I was a child, a teen and a law student, I watched my dad and other lawyers and judges of that era do their jobs. They were better examples of what I am talking about than we (myself included) are today.

My practice now spans half my life, and every year behavior in the legal profession has gotten worse. As a result of the degenerating standard of conduct, participants become less “civil,” and this is no surprise. Every year, more and more I see indicia:

• The increasing willingness of lawyers simply to lie. I do not mean artfully advocate, because I love to watch skillful advocacy, even when I am the one getting clobbered by it. I mean lie. Flat out saying “This is A” when it is B. I can’t help myself. I really don’t like that. I react to this “uncivilly” by indicating that the lawyer is either factually mistaken or lying. If it persists, I conclude “uncivilly” that the lawyer is a liar. Some would argue that if this occurs in open court I should report the lawyers to the disciplinary commission. But I don’t want the lawyers to be disciplined; I just want them to stop lying. I want the lawyers to be honorable servants of this worthy process by their own commitment to the tenant because it is the right thing to do. It would be fine with me if those same lawyers just got up and said, “Here is the testimony and I don’t like it or believe it and I don’t think the court should either and here are other facts to show why.” And, if the judge agreed with that position, that’s how it works. I do not accept the notion that lying is advocacy. To me it’s just lying. If a lawyer can’t take the position without lying, the lawyer needs to find something else to talk about.

• Cheating. Alter a photo and not tell anyone. Change an exhibit and not tell anyone. Leave out documents or change the order of production responses to hide things. Conceal a witness. Sandbag. I love and admire strategic practice. I hate cheaters. Amazingly, often the liars and cheaters don’t even need to lie or cheat to do well, and they still do.

• An increased willingness of judges to make rulings that do not follow the law but are result-oriented to compel a preferred outcome. Classic examples include denying a summary judgment to compel settlement or disliking a law enough to avoid applying it and obtaining a preferred result through other procedures. I think courts should be allowed to express their opinions on the direction of the matter. Express disagreement with the law, but let it take its course.

So, instead of calling for more civility, let me urge all of us to strive to be honorable servants of this worthy process. Let’s call for less lying. That way, we don’t have to call liars “liars.” Let’s call for less cheating. That way, we don’t have to call cheaters “cheaters.” Let’s call for fewer cheap shots. That way, we don’t have to call people “cheap shot artists.” Let’s call for a less-abusive litigation style. That way, we don’t have to call people “SOB litigators.” Let’s call for intellectual honesty. That way, we don’t have to call people “intellectually dishonest.”

Think of how much more civil it will be.•

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Mr. Kalamaros is a partner in Hunt Suedhoff Kalamaros and is a member of the DTCI Board of Directors. The opinions expressed in this article are those of the author.