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Civility as a Strategy in Litigation: Using it as a Tactical Tool - CANADA

Civility as a Strategy in Litigation: Using it as a Tactical Tool BY Eugene Meehan, Q.C.* *Lang Michener 300-50 O’Connor Street Ottawa, Ontario K1P 6L2 Phone: (613) 232-7171 Fax: (613) 231-9191 2 Introduction * Our profession is an adversarial profession, and gladiators for justice do not always follow the motto in the movie Gladiator: “Strength and honour”. Some lawyers use litigation as a flamethrower. Every one of us personally knows lawyers we would rather be smacked across the head with the annotated Constitution for two days straight than be snowed-in with them in a remote cabin for a weekend. The bottom line is: there are some people you simply will not be able to change. What you can change is your attitude in dealing with such people, and also your strategy in dealing with such people. Civility as a Tactical Tool The adversarial nature of the legal system directs lawyers to a radical kind of individualism in a contest to trump rights. This context can foster patterns of discourteous, thoughtless, and rude behaviour towards one another:            the talking down (by a senior lawyer to an opposite junior lawyer: “You’re not a partner there yet?”) the belittling (the lawyer on the other side says “How are articles going?”) the sexist behavior (“Are you the lawyer or his secretary?”) the threats (“If you don’t do XYZ by Friday, I’ll report you to the Law Society.”) the sharp practice (turning off the fax, the head games) the over-your-head game (calling someone “higher” up in your firm) during discoveries the constant interrupting, bickering, answering for the witness, and the continual and deliberately evasive “I’ll take that under advisement” the satisfaction-of-undertakings document dump on a Friday at 4:50 p.m. the service on your receptionist-on-her-way-out-the-door at 4:55 p.m. (so you get it the following Monday) the 2-page letter attacking you personally, copied to your client, copied to his client (or trying to be clever, attacking your legal assistant personally) being told that the other sides’ response to my court motion was to “F___ off.” Trying to legislate civility is impossible—not to mention impractical. I suggest that instead of thinking of civility as something that must be regulated or that will come naturally, that we rather think of civility and courtesy strategically, as tools in the lawyer’s arsenal. * Ideas for this paper are taken from writer’s personal experience and other material, including in Selected Bibliography at end of this paper, and in quotes from other material therein. 3 Sincere civility is the expression of a state of mind, a sign of character and personality. But more significantly, civility is a tactical tool all too often overlooked by lawyers. The practice of civility is usually undertaken on the basis of individual lawyers voluntarily restraining their impulses in favour of the greater good. But seen another way, however, civility is an inherent component of any legal strategy: in the same way that good oratory is a good person speaking well, so good lawyering is a good person acting well. A time-waster, a money-waster A common objection to civility is that it diminishes advocacy for the client. Yet, the reality is that incivility disserves the client because it wastes time and energy. Billable hours that should be spent working on the case are wasted by working the opposing counsel over. An English proverb says: “the robes of lawyers are lined with the obstinacy of clients.” In the writer’s experience, the obstinacy of one lawyer lines the pockets of another—and the escalating tensions are matched by escalating fees. A strategic option Don’t be civil because it’s the proper thing to do. Be civil because it’s the strategic thing to do. Ten points for using civility as a strategic tool. No. 1: To most judges bad behavior makes bad advocacy Belligerent and discourteous behavior in the eyes of strong judges is not persuasive. In fact, discourtesy in delivery can undermine an otherwise strong argument. Points are won by being personally attacked, and afterwards standing your ground, saying little or nothing, and instead of responding to the attack, responding only to the issues. Judges know some people blow out other people’s candles so theirs burn a little brighter. Remember: judges are just lawyers with a whistle—they know what it’s like to be a lawyer. No. 2: Incivility has a price The principles of civility may not have the force of law, but a recent decision indicates that advocates who prefer Rambo-style intimidation eventually do so at their peril. In Baksh v. Sun Media, Case Management Master Ronald Dash ordered Baksh, a criminal lawyer, to pay $4,858 for breaching both the Law Society of Upper Canada’s Rules of Professional Conduct and non-binding Professional Principles of Civility. Costs were awarded because Baksh impugned the motives of the lawyers representing Sun Media by stating: 4 “they think they can prey on me by defaming me and then using procedural wrangles in their shameless quest to derail determination of the substantive merits of my action,” and accused them of, “wanting to bring clout as a Goodman’s law partner into the frey [sic] of these proceedings like some Goliath trying to lampoon a less fortunate person.” The principles of civility were also used in the case of Etobicoke Noodles v. Rajah. In this case the court ordered a lawyer to pay costs of $7,610 for writing a barrage of letters to his opponents in which he accused them, without justification and as an intimidation tactic, of a variety of acts of personal and professional stupidity. The court found that the lawyer’s “approach to this case and his dealings with other counsel are so lacking in professionalism and fair play that the court must demonstrate its disapproval in a tangible way”. No. 3: Civility in communications Every communication with opposing counsel can be an opportunity for employing strategic civility. Lawyers have long memories—judges too. Civility frames common expectations about trust and respect in seeking resolutions through dialogue. As one lawyer said, without mutual confidence, there cannot be an effective meeting of the minds as a way to resolve social disputes and problems. Lawyers often wind up talking past each other or sinking to the lowest common denominator to strike a short term advantage. What’s ultimately important, and ultimately strategic, is doing what is right regardless of the circumstances and not being deliberately distracted from your goal by what the other side does. No. 4: Avoiding acrimonious language Do not attribute bad motives or improper conduct to opposing counsel unless it is relevant to the issue at hand and even then only when well-founded and provable. In Ontario the matters which now form the largest class of claims made against lawyers are from categories such as libel and slander allegations by lawyers against lawyers, claims that counsel should pay the costs of proceedings personally and claims arising from a breakdown in the solicitor/client relationship. For example, the following letter cc’d to the other side’s client is likely defamatory: “I notice that you have still not delivered a Statement of Defence on behalf of [ ]. My friendly advice to you is that you are being negligent. I do not wish to take advantage of your apparent lack of knowledge. I will give you one 5 last chance and give you some homework to do. Please refer to Rule 16.08 of the Rules of Civil Procedure and to any textbook on Civil Procedure on service of court process. You will no doubt realize that your insistence on “personal service” is in error. The letter you wrote me copied to your client misrepresents what happened to the point of untruthfulness. In any case you must deliver the Statement of Defence on or before [ ]. If you fail to do so, you may regret the consequences.” No. 5: Setting a flexible tone Make efforts to avoid scheduling conflicts. Agree to reasonable requests for scheduling changes. Do not attach unfair conditions. Remember: what goes around comes around. You smack someone today, you’ll get smacked later. When consistent with your client’s interests, co-operate with opposing counsel in an effort to avoid litigation and resolve litigation that has already commenced. Return telephone calls and answer correspondence promptly. Not because that’s the proper thing to do but because the other lawyer, her client, your client, will report you to the Law Society. That means, even when you’re vindicated, you have to respond to that complaint letter from the Law Society in a proper, full, and therefore time-consuming way. Don’t deliberately schedule the service of papers to cause disadvantage to your opposite number. Do not use any aspect of the litigation process, including discovery and motion practice, as a means of harassment or for the purpose of unnecessarily prolonging litigation or increasing litigation expenses. No. 6: In the Court of Appeal, let go the little stuff Minor misstatements of the law or facts by the Court below aren’t going to win your appeal. Don’t set out just to whack the Court or judge below, rather identify major mistakes and criticise the rationale of the lower court’s decision. Don’t whack the other side either - use courtesy. Advice given to Ed Bayda, now Chief Justice of Saskatchewan, during his first summer job (selling “waterless” cooking pots door to door): “People buy things from people they like.” No. 7: Dealing with stress Much has been written about how stressful the practice of law has become. One of the most effective ways of handling stress is simply to avoid creating unnecessarily stressful interactions with colleagues. Strategic friendliness is a way of doing this. Instead of wasting time trying to think of how best to create a detriment to the other side, consider what one lawyer has termed an 6 “ethic of care” which is described as “considering the needs of all the parties involved as well as their relationships and attempting to find a solution that will satisfy everyone, rather than selecting a winner and a loser.” No. 8: Practical reasons why civility is important The harder you argue, the less persuasive you are. The more you press, the more you hype, and the more you urge, the more sales resistance you create and the more you start to sound like the guy from Gene’s Water Beds on Saturday night TV. Real persuasion takes place when the reader thinks the conclusion is his or her own idea. Your job as an advocate is to help the judge find the right ideas herself that will lead her to decide the case your way. Offer a reasoned solution to the judge instead of arguing: here’s why I am right and here’s why you the judge must agree with me. The “I’m always right” technique doesn’t work with my 10 year old, why expect it to work with a 50 year old? Change your overall strategy over to the following: here’s the problem, but here’s also a reasoned solution. It works better - and you’ll win more. One lawyer has written that the most important trick about good advocacy is the trick of abandoning trickery. You can be the greatest legal orator the legal system has known, but if you’re not credible it simply doesn’t work. A child can win an argument with very simple language that innocently reveals the truth, or innocently reveals the logic. People win arguments because they are believed. No. 9: Never respond in kind As difficult as this may be, if you resort to similar conduct, you open yourself to counter-charges or worse, damage your own credibility. Make a practice of preparing yourself in advance of the next communication and anticipate the situation. This will allow you to control your emotions and responses. Never wrestle with a pig—you only get dirty, and the pig likes it. No. 10: Ten Tactical Tools, to Stay Practical Prepare yourself strategically for confrontations with incivility. Ten tactical tools to respond to incivility: 1. when opposing counsel insults or baits you in telephone conversations simply inform him/her that unless they agree to be civil, all future communications must be in writing. 2. when the other side is constantly interrupting discoveries or cross-exams on an affidavit with silly objections, try to create a transcript describing the reasons you 7 are prematurely adjourning until you can get a ruling on the appropriateness of the conduct of opposing counsel. You can also inform opposing counsel that you will be asking for costs. 3. when opposing counsel is being needlessly abusive, I just sit back and say, “Go ahead, get it off your chest. When you’re finished, I’ve something to add.” Patience is idling your engine when you feel like stripping your gears. 4. when your opposite number says you don’t belong in the practice of law, says you don’t know what you are doing, or insults the Law School where you received your degree; exude self-confidence and, with exaggerated humility, say something like “well in your mind you may be right, but I’m here to stay and it’s a problem you will have to learn to live with.” Your own self-esteem does not depend on affirmation from this person. Accept that some days you’re the statue, and some days you’re the pigeon. 5. when a lawyer consistently talks over me I wait until they take a breath, then say: “Listen, let’s make a deal: when you’re talking, I’ll listen and not interrupt; but when I talk, the deal is you too listen and not interrupt.” If, when they don’t (inevitably) abide by the deal, simply remind them (on the record). 6. when a lawyer I know gets shouted over in discoveries her standard response is to say: “Shouting your questions and your responses doesn’t give the force of your statement additional weight beyond that of additional noise. Madame Reporter we’ll take a 10 minute break so Mr. X may compose himself”, and walks out with the client. And the transcript so records. 7. another lawyer I know tries to figure out in advance each objection he thinks the other lawyer will make during the discovery/exam-on-affidavit, whether his client is being examined or vice versa, whether the objections are polite or impolite, then types his detailed responses into his laptop, and when the objection comes, he reads it into the transcript. When the inevitable motion to produce/answer comes, the transcript always makes him look like a star. When appropriate he asks for costs, sometimes on a personal basis (again, where the behaviour is particularly uncivil and intemperate), and sometimes gets them. 8. when you get a letter full of dictated invective, the person sending it to you wants you to be shocked and appalled and respond the same way. Don’t. Respond, saying only: “I am in receipt of your letter of [date].” Don’t sign it yourself, have your secretary initial it. A personalized attack letter from an attack-dog lawyer has all the credibility of a disbarred lawyer on a book tour. Don’t join the book tour. 9. respond to extreme hostility and baiting (as one Alberta judge did when called a 8 “Motherf___g b_____” by an accused) with “Lucky guess”. 10. and last, hope for the opportunity that once in your legal career another lawyer (or perhaps a judge) will say to you: “Mr./Ms. ____, I have read your material and I must tell you I am none the wiser”—just so you can respond: “Perhaps, your honor, but certainly better informed.” Conclusion My mother was right, even at 6 years old (me, not my mother): “Eugene, if you’ve nothing nice to say, don’t say it”. 45 years later, as a strategic response to incivility, it still works. 9 Selected Bibliography* The Advocates’ Society, Principles of Civility for Advocates, ( Sandra Day O’Connor, Professionalism, 76 Washington University Law Quarterly Spring 1998 (wysiwyg://63/ Michael Eizenga, Citizenship in the Legal Profession: Civility as an Instrumental Value in SelfGovernance, Civility in the Legal Profession Conference, Advocates Society October 31, 2000 R. Terri Mandel, Beyond Zealous Advocacy: Harassment and its Remedies, Bench & Bar of Minnesota, April/May 1999 ( David Gambrill, Lawyer dinged with costs for uncivil conduct, Law Times February 3, 2003 (page 1-2) Stephen L. Carter, Just Be Nice, Yale Alumni Magazine May 1998 ( Robert W. Ritchie, Civility in the Practice of Law: Must We Be “Rambos” to Be Effective? Bencher's Advisory, August 1998. David W. Scott Q.C., Relations between Trial Lawyers: A Code of Civility, County of Carleton Law Association, Chateau Montebello, Quebec, November 3-4, 2000 (Civil Litigation Updated 2000) Ronald G. Slaght, Q.C., Whatever Happened to Civility?, The Advocates’ Brief, Vol. 11, No. 10, July/August 2000. Standards of Civility, New York Law Journal ( Gerry Spence, How to Argue and Win Every Time: At Home, at Work, in Court, Everywhere, Every Day, St. Martin’s Press, (May, 1996) John Simonett, Keep Justice Civil, Trial, pg. 48 (July 2003) LawPro Special Report, “Aggressive Behaviour, Poor Communication Prompt Claims”, “Speak out and I May Eat Your Worst” (June, 2003) Robert P. Sokalski, Civility in Practice Manitoba Bar Association Headnotes & Footnotes August/September 2000 edition Volume XXXII No. 7