And What Will You Eat In Settlement Negotiations? – Above the Law

As if we lawyers needed one more word to be spoken or written about civility among us, the Association of Business Trial Lawyers-Los Angeles devoted its entire summer 2019 issue to, what else, civility or the lack thereof. The very fact that ABTL-LA decided that it needed to take on the issue and devote an entire issue means that civility is still a long way away, at least in ABTL-LAs perception, and that is a perception shared by many.

It seems that the problem is not so much in court, where lawyers, fearing judicial wrath, can and do stifle themselves to be civil, its the out-of-court shenanigans that create the most problems. No one likes to tattle on others. Well, maybe some do, but the vast majority of lawyers prefer to solve problems without resorting to nasty, intemperate tactics. Raise your hand if youre like me and weary of what seems to be constant yammering about the lack of civility. Didnt anyone learn the Golden Rule all the years ago? I guess not, or if so, its been lost in the fog of war, so to speak.

Exhibit A for an example of the most reprehensible incivility comes, I am embarrassed to say, from California, in fact, from SoCal, in fact from the Westside. If I hadnt read the post and then the court filings, I wouldnt have believed it, but there it all is in black and white.

Read Staci Zaretskys post and tell me at what point plaintiffs counsel may have crossed the line, which he admitted in his response to defense counsels ex parte application. Crossed the line? Please. The attorney also says that the remarks were in the context of confidential settlement negotiations. He also claims that he may have used some inappropriate language out of frustration and anger. I dont think that there is anything confidential in such language, nor should there be, and I cant imagine what situation would ever justify some inappropriate language as that set forth in the defendants ex parte application.

So, although plaintiffs counsel has apologized, I wonder whether the apology was really that, or rather an apology because he was caught using such language. Remember the admonition that every smart lawyer takes to heart: write every email as if it could wind up on the front page of a newspaper, a website, whatever. This series of emails did wind up in the courts record. The Twitterverse has also weighed in.

Does anyone think that a mandatory ethics course on civility would be the way to go? Maybe, but again, You can lead a horse to water .

And that leads me back to the ABTL-LA summer issue on civility. Most of the articles are preaching to the choir, that its not this membership that needs a refresher course in civility. However, one article gave me pause as I had not thought about gender equality as part of the civility issue. Silly me.

Two female judges, Justice Lee Edmon, Presiding Justice of the California Court of Appeal, Second Appellate District, Division 3 and Judge Samantha Jessner, Supervising Judge of the Civil Division of the Los Angeles Superior Court, posit that, in the context of civility, gender discrimination is not its own separate animal. The authors see it as a subsection of the broader civility issue. Im not sure I agree.

In dinosaur days, I dont recall that incivility was as rampant as it is today. Yes, you had the big-mouth jerks and those know-it-alls, who really didnt know it all, but I thought there was at least a veneer of politeness and respect. It may have been a particularly thin veneer, but at least there was a veneer between civilization and primal darkness. (Anyone who has read Joseph Conrads Heart of Darkness will understand the reference.) It may have been my obliviousness as a young lawyer practicing in a small lawyer community where everybody knew everyones name. However, sex discrimination existed.

It wasnt until 2014 that the State Bar of California found it necessary to add language about civility to the attorneys oath. If the State Bar had thought that was an issue years ago, I think that the civility language in the oath would have been added years ago.

The legal community was much smaller years ago, and so word got around about lawyer jerks. We didnt need social media to learn about reputations, and that was true for lawyers and judges. The authors conclude that sexism is alive and well in our profession (no argument there) and that sexism finds its expression in incivility.

How do we promote civility in a culture these days that seems to worship at the altar of incivility? What examples can we use to lead by example, rather than by excrement? We can talk up civility all we want, but until there are some consequences to incivility, I dont think anything will change. Its all well and good to talk about the need and desire for civility, but, right now, there arent a lot of role models to point to.

I think the heavy hammer of sanctions is one tool to start impressing upon errant lawyers that there are monetary consequences, and not just financial wrist-slaps, for being a jerk (or whatever other noun you choose). But judges have to be willing to do that. Are they?

Plaintiffs counsel, Christopher Hook, was admitted to the California Bar in 2008. With more than a decade of practice, he should have known better. Practicing law is definitely not a bowl of cherries, but it certainly isnt simply a bowl of dicks.

Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. Shes had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact its not always civil. You can reach her by email at oldladylawyer@gmail.com.

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And What Will You Eat In Settlement Negotiations? - Above the Law