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CODIFYING ‘COURTLY’ BEHAVIOR

Breaches of decorum during trials and hearings have been occurring at least since a judge first angrily banged his gavel and proclaimed “Order in the court!”

And some of the most memorable courtroom scenes in the movies and TV are variations of the judge threatening to hold an attorney or defendant in “contempt,” and that party uttering a variation of “That’s because you’re contemptible!”

In short, courtrooms have always been concerned about maintaining civility.

What may be changing, however, is that incivility between lawyers from opposing sides is becoming more endemic to the culture. Some blame the pressures of 24/7 communications, which fray nerves and lead to impulsive, inflammatory emails and tweets any time of day or night. Others note that, just as the days of Democrats and Republicans fighting ferociously in the Capitol but retiring at day’s end to sit at adjacent bar stools in the local watering hole has given way to members of both political parties barely being able to tolerate breathing the same air, the days of opposing counsels according respect to each other and even socializing outside the courtroom is not as prevalent as in bygone eras, like five years ago.

Not everyone agrees, of course. There are those who demur, “Hey, %^$# you! Who the *&$^ are you to tell me I’m being &$^UU@ uncivil!”

Well, a few months ago U.S. Federal Court Judge Hon. Yvonne Gonzalez Rogers thought she was that somebody.

On the very first day of hearings in the case In Re: Lithium Ion Batteries Antitrust Litigation, Judge Rogers of the Northern District Court of California, Oakland division, sua sponte and without any precipitating incident, announced from the bench that she wouldn’t tolerate less than a high level of civility in her courtroom, and asked attorneys from both sides to meet together and draft a professional code of conduct that they would abide by during the proceedings.

The meeting resulted in 18 broken bones, 37 severe fractures, 12 arrests and 19 lawsuits.

Noooo, it didn’t. From all accounts the meeting was cordial and the parties did indeed produce the requested code on the 17th day of June, 2013.

Categories covered in the “good practices” document include punctuality, service of papers, discovery, continuances, responsibilities to the client and other attorneys, writings submitted to the court, trial and hearings, dispute resolution, and more. And while the code seems eminently reasonable and controversy-free, it contains many items that elicit a “Really? Things have fallen so far that it’s necessary to include these absurdly obvious points? God, what a sad commentary on our times” reaction. A few of which I paraphrase:

  • Be punctual. If you’re going to be late, call. You know. The same thing your spouse has been telling you for twenty years.

  • Treat the opposing counsel with courtesy and respect. Even though we both know he doesn’t deserve it.

  • Only make objections during a trial or hearing for legitimate and good faith reasons, and not solely for the purpose of harassment or delay. The word “solely” gives you a little wiggle room, but don’t go overboard.

  • “A lawyer should not draft letters (i) assigning a position to an opposing party that the opposing party has not taken, or (ii) to create a ‘record’ of events that have not occurred.” Leave that stuff for when you run for political office.

  • Lawyers should not knowingly delay, refuse, hinder, impede, embarrass or otherwise jam up the works pertaining to requests for extensions, taking depositions, motions, hearings, serving of papers etc., just for the sake of, you know, being a dick.

  • A lawyer should avoid repetitive or argumentative questions or those asked solely for purposes of harassment.  This is a chestnut, as every legal drama ever made has an attorney objecting to the other attorney “badgering the witness.”

  • Requests for the production of documents should be limited to ones that the attorney actually needs for his case. Requesting documents in order to embarrass, burden, impoverish, delay or have opposing attorney arrested by the EPA for deforestation are discouraged.

  • “A lawyer should work to achieve his or her client’s lawful and meritorious objectives expeditiously and as economically as possible.”  That laughing coming from a few of you is very unseemly.

The code has more common sense and ethical prescriptions to follow, the kind that it seems should have been taught the first day of law school. Or, for that matter, kindergarten. Because in many ways, it all boils down to this:

PLAY WELL WITH OTHERS. DON’T BE A JERK.

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One Comment

  1. Alain Delerm says:

    Meh, it is more about common sense, I think. Besides courtesy and being correct is the least what an attorney could offer to his environment.