Opening Statement: CivilityAuthor(s): David C. WeinerSource: Litigation, Vol. 21, No. 1, JUDGES (Fall 1994), pp. 1-2, 58-59Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29759735 .

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Opening

Statement

Civility

by David C. Weiner

Chair, Section of Litigation

There is one central recurring theme amidst all of the discussion in recent

years over the increased lack of civility in the legal profession. Commentators

may differ over the causes or the solu? tions but they all agree on one key point: There is definitely a problem. For

example, the following exchange actu?

ally occurred between two very promi? nent attorneys at a recent deposition:

Attorney A: You don't run this

deposition, you understand?

Attorney B: Neither do you, Joe.

Attorney A: You watch and see. You watch and see who does, big boy. And don't be telling other

lawyers to shut up. This isn't your g_d_job, fat boy.

Attorney B: Well, that's not your job, Mr. Hairpiece.

Witness: As I said before, you have an incipient...

Attorney A: What do you want to do about it, a_h_?

Attorney B: You're not going to

bully this guy.

Attorney A: Oh, you big tub of s_, sit down.

Attorney B: I don't care how many of you come up against me.

Attorney A: Oh, you big fat tub of s_, sit down. Sit down, you fat tub of s_.

Surely, all of us would agree that there is no place for such behavior in our pro? fession.

All of us owe a duty to our profes? sion to conduct ourselves in a profes? sional manner. As one jurist recently put it "[ejthics is that which is required, and professionalism is that which is

expected." I also agree with the New

Hampshire Supreme Court that the

very integrity of the adversarial process hinges on the continued professional? ism of lawyers:

One of the legacies of Anglo

Saxon jurisprudence and the com? mon law is the adversarial

process. Properly used, including cross-examination of discovery, it is an effective tool in search for truth. The integrity of the process and its continuing viability depend, however, on the members of the bar, who are in a position of

privilege to use it. Consequently, there is a concomitant duty not to abuse the process.

Daigle v. City of Portsmouth, 630 A.2d 776,778 (N.H. 1993).

Concern about increased incivility in the profession led Judge William J. Bauer, the Chief Judge of the Seventh Circuit Court of Appeals, to appoint a nine-member Seventh Circuit Commit? tee on Civility chaired by Judge Marvin E. Aspen of the Northern District of Illinois. Judge Aspen has been an active member of our Section and cur?

rently serves on our Council. Judge Bauer charged the committee with

determining whether there was a civil?

ity problem in the Seventh Circuit and, if there was, recommending possible remedies.

In conducting its study, the commit? tee reviewed legal literature and the law in other jurisdictions and conducted an informal survey of the federal judges in the circuit, more than 1,500 lawyer

members of The Seventh Circuit Bar Association, and members of other bar associations within the circuit.

According to Judge Aspen, the com? mittee learned that there is widespread dissatisfaction among judges and

lawyers in the Seventh Circuit at the

changing of the practice of law from an

occupation characterized by congenial professional relationships to one where abrasive confrontations too often dom? inate. Many in our Section will agree that the Seventh Circuit's lawyers are not unique in this regard. Today, any discussion among litigators about the current state of the profession will

invariably feature stories highlighting

Litigation Fall 1994 Volume 21 Number 1

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The Journal Of The Section Of Litigation American Bar Association

Litigation Vol.21 No.1 Fall 1994

editor-in-chief Mark A. Neubauer Stern, Neubauer, Greenwald

& Pauly P.C. 1299 Ocean Avenue Santa Monica, California 9401

executive Kenneth P. Nolan editor Speiser, Krause, Madole & Nolan

New York, New York

senior James W. McElhaney editors Case Western Reserve University

School of Law Cleveland, Ohio

Jacob A. Stein Stein, Mitchell & Mezines Washington, DC

associate Kevin Abel editors Bryan Cave

St. Louis, Missouri

Arthur H. Aufses III Kramer, Levin, Naftalis, Nessen,

Kamin & Frankel New York, New York

Peter D. Baird Lewis and Roca Phoenix, Arizona

R. Bruce Beckner Fleischman and Walsh Washington, DC

Jeffrey Cole Cole and Staes Chicago, Illinois

Edna Selan Epstein Law Office of Edna Selan Epstein Chicago, Illinois

Stephen Good Kem & Wooley Dallas, Texas

Howard Gutman Williams & Connolly Washington, DC

Susan Yvonne lllston Cochett, lllston & Petrie Burtingame, California

Richardson R. Lynn Pepperdine University

School of Law Malibu, California

Steven J. Miller Goodman Weiss Freedman Cleveland, Ohio

Michael B. Reuben Gordon Altman Butowsky Weitzen

Shalov & Wein New York, New Yorkk

Eric Rieder Robinson Silverman Pearce

Aronsohn & Berman New York, New York

Gary Sasso Carlton, Fields, Ward, Emmanuel,

Smith & Cutler St. Petersburg, Florida

Robert E. Shapiro Barack Ferrazzano Kirschbaum & Perlman

Chicago, Illinois

Lawrence J. Vilardo Connors & Vilardo Buffalo, New York

managing Cie Brown Armstead editor American Bar Association

art Michael Waitsman directors Liane Sebastian

Synthesis Concepts Inc. Chicago, Illinois

ever-increasing incidents of incivility, such as the one quoted earlier.

Incivility exists today in all areas of

litigation practice, including written

discovery, depositions, submission of briefs and memoranda to the court, hearings, trials and in everyday interac? tions and communications among coun? sel. The respondents to the Seventh Cir? cuit committee's survey detailed numerous instances of incivility in all of these areas. For example, the respon? dents identified many acts of incivility frequently occurring in the written dis?

covery process. The committee labeled such conduct as "Strategic Non-Com

pliance in Discovery." The conduct included obstructing access to docu?

ments, burdensome requests for docu? ments, refusals to make reasonable

scheduling agreements, and a general failure to cooperate.

The committee also found that depo? sitions can be one of the more uncivil

phases of trial practice?a finding that comes as no surprise to any litigator who has been involved in more than a few depositions. According to the

respondents, uncivil conduct at deposi? tions ranges from refusal to cooperate in scheduling to abusive and unethical conduct during the deposition, such as

being unnecessarily hostile towards

opponents and coaching witnesses. Even more disturbing than the exam?

ples of uncivil conduct in discovery were the responses describing numer? ous instances of conduct demonstrating a lack of integrity. This conduct included the assertion of bad faith argu?

ments, misrepresentations of facts or

law, lack of candor despite clear ethical duties to be candid and outright lying both inside and outside of court.

Finally, the committee received

responses complaining of personal attacks and aggressive behavior. The

aggressive behavior manifested itself in an attitude that everything should be a fight there should be no cooperation on any issue. The respondents also identified as a problem the inclination of some lawyers to attack each other rather than the facts of the case.

These complaints come as no sur?

prise to any of us. We all have experi? enced such incivility and, to be honest, most of us likely have been guilty of at least some uncivil conduct at one time or another. It is not the isolated instances of uncivil conduct, however that prompted Judge Bauer to appoint

the committee. It was the belief that

incivility in the litigation process is

becoming a widespread problem. I could not agree more.

The problem of increased incivility deserves our attention because it is hav?

ing serious adverse affects on our pro? fession and the people we serve. More and more litigators are becoming dis? satisfied with the profession. Clients are increasingly seeing litigators as

problem-creators rather than problem solvers, and incivility is a major factor

responsible for increasing the cost and

delays in today's litigation practice. Thus, it is incumbent upon our Section to assist the good efforts that are under

way to right the ship.

Is There a Solution? It will not be an easy problem to

solve.

Many would say that the problem is so pervasive that it cannot be solved. Others would argue that the profession cannot teach or mandate civility because the problems are caused by those attorneys who were not taught proper manners as youths, have no

respect or love for the law or, rightly or

wrongly, believe only those who play "Rambo" will succeed and prosper in this hardened world of the late twenti? eth century.

To accept any of these views is unac?

ceptable to me. While we continue to

represent our clients zealously, we must work equally hard to have all in our profession do it with civility and

professionalism. While ultimately it will only be accomplished if each one of us "do the right thing," organizations such as our Section can point the way so that those among us who need guid? ance can receive it.

Good efforts are being made to address the problem. The Seventh Cir? cuit committee's report made several recommendations that address the

problem. The committee's recommen? dations included the adoption of its Standards for Professional Conduct within the Seventh Federal Judicial Circuit. The Standards include provi? sions relating to lawyers' duties to other counsel, lawyers' duties to the court, courts' duties to lawyers' and

judges' duties to each other. While the standards are aspirational, not manda?

tory, in nature and are not to be used as

grounds to impose sanctions, they are

(Please turn to page 58)

Litigation Fall 1994 Volume 21 Number 1

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gate to make a statement. Often the

lawyer is of the same persuasion as the client. A lawyer who finds a cause early in her career is lucky. She knows who her enemy is, and she steps out to

engage the enemy. She enjoys the bat? tle. How nice to win, but defeat is not too painful. It is part of some grand process, part of the game. It is the way a good public defender fights out case after case, often taunted by judges and

disregarded by juries. It is a self-select

process. Only those who can take it make it.

Here is what to keep in mind as the ideal?the words Winston Churchill used to describe a World War I General:

During these vicissitudes he was

always the same. In the best of fortunes or the worst, in the most

dangerous and hopeless position or on the crest of the wave, he was

always the same tough, cheery gentleman and sportsman. He had

always the same welcome for a

friend, be he highly or lowly placed, and the same keen, practi? cal, resolute outlook on facts how? ever they might be marshalled.

Oh, to be such a person, just one day, a day that provides real good news and real bad news and those we work with cannot see what goes on inside. IP

Opening

Statement

(Continued from page 2)

designed to set the standard for all

lawyers practicing in the courts of that circuit.

The committee's recommendations also included the implementation of

civility training (including education

regarding the standards) for lawyers in

public law offices, private law firms, and corporations with in-house coun? sel. Additionally, they recommend par? ticipation in civility programs in pro? fessional legal associations and bar associations as well as participation in one of the American Inns of Court and law school civility training.

The Seventh Circuit Court of

Appeals is by no means the only body

that has addressed the problem. Prior to the publication of the Seventh Circuit committee's report, several state and

local bar associations had adopted stan? dards or codes addressing civility and

professionalism. Subsequent to the

report's publication, the Boston and Connecticut Bar Associations adopted standards addressing incivility among litigators. Also prior to the publication of the committee's report, the Oakland

County (Michigan) Bar Association embarked on a project to improve civil?

ity among attorneys. The Oakland

County program is designed to permit lawyers within its Association to refer their disputes or complaints about other

lawyers for unprofessional conduct

(not serious enough to be a grievance) to a Designated Conciliator for media? tion and/or resolution.

Take the Pledge Our Section's Committee on the

Judiciary, co-chaired by U.S. District

Judge Kimba Wood and Miami litiga? tor Hilarie Bass, is working to encour?

age other courts and bar associations to

replicate the work of the Seventh Cir? cuit and other courts and bar associa? tions. I am sure they will welcome the assistance of other Section members.

On the national level, the American Inns of Court, established in 1980, has dedicated itself to helping right the

civility problem. With the establish? ment of local Inns modeled after the traditional British model of legal apprenticeship but modifying it to fit the particular needs of the American

legal system, more than 300 amalgams of judges, lawyers (ranging from sea? soned veterans to novice young lawyers), third-year law students and law professors come together regularly to improve professionalism and legal ethics. The use of "Pupillage Teams" and individual mentor/mentee teams is

designed to have the less experienced lawyers learn from their seniors and to see, by way of example, that civility and professionalism can be coextensive with winning and success. The Inns are to be complimented for their efforts and

hopefully their long-term success will result in a kinder, and gentler profes? sion. Our Section has been an active

supporter of the Inns movement and will continue to be in the future.

At this year's ABA Annual Meeting in New Orleans, the Section's Commit? tees on Ethics and Professionalism and Liaison with the Judiciary and the

ABA's Judicial Administration Divi? sion, together with the American Inns of Court Foundation, sponsored a pro? gram entitled, "C'mon, Judges, Let's Do Something"?The Role and

Responsibility of the Judiciary in Pro?

moting Professionalism, which detailed many of the same problems of

incivility found in the Seventh Circuit Committee's Report.

The participants at that program dis? cussed the efforts courts have made in

addressing the incivility problem and what the courts' role should be in

addressing the problems of incivility. Both the written materials, which fea? tured a well written 50-page paper on

"professionalism" and the panel dis? cussion were well received.

On a related front, our Section's Task Force on Client Relations has been

focusing on day-to-day client-lawyer problems, especially as they relate to

incivility. We expect to see substantial efforts from our Task Force soon.

While the Section will continue to

support these activities (and new wor?

thy initiatives as they come), all mem? bers of the Section must make a good faith pledge to themselves, their clients and their adversaries that they will con? duct themselves professionally and with civility. This pledge should be part of the understanding at the outset of

representation and should be

exchanged in writing with both client and adversary.

The pledge should address all phases of litigation practice: discovery (writ? ten and depositions), written submis? sions to courts, hearings and trials. The

pledge should also address the way we will treat one another generally with the type of respect and courtesy one would expect if each of us followed the Golden Rule. While I realize some

(perhaps many) will consider the con?

cept of a personal pledge to be a

Pollyanna approach, I am a firm believer that important strides can be made if individuals, such as members of this Section, make the type of per? sonal commitments I am suggesting. If

nothing else, those of us who do it will have done something very important and positive for our profession.

Being a lawyer should be a source of

pride and should enable us to derive

professional satisfaction. The growing incivility in the profession endangers that pride and professional satisfaction. It is time we each, individually take such a pledge and conduct ourselves

Litigation Fall 1994 Volume 21 Number 1

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accordingly. I promise to do so and

hope each of our 65,000-plus members will do so too. It will be a great step for? ward. 10

Reply Briefs: Cole

(Continued from page 50)

"connected" to the National Security Counsel (which Poindexter headed) to

destroy or alter Iran Contra records, the President's answer was the antithesis of a "clear and ready acknowledgement" of lack of involvement:

A. Here, again, I don't know. And I have to say in connec? tion with what I just said a short time ago, there could be

things? MR. WEBB: Your Honor, could I

respectfully? THE COURT: No, no. Just let

him answer the question. THE WITNESS: There could be

things that would arise in which for the protection of those people for which we were maintaining silence, there may have been things that we would have had to say at the time in connection with the preservation of those lives.

(Tr. 254-55) (Emphasis sup? plied).

Mr. Webb continued to press: Q. My question goes?did you

listen to my question Mr. Pres? ident? Did you ever authorize or approve any member of the National Security Counsel in November of 1986 to destroy or alter any records or docu? ments relating to the Iran or

[sic] Contra affair? A. And this, I cannot answer. I

cannot recall because it is the

possibility that there were such papers that would vio? late the secrecy that was pro? tecting those individuals9 lives. (Tr. 255).

Given the absence of the kind of "clear and ready" answers to questions,

Mr. Webb was forced to resort to the President's answers to interrogatories which contained an unconditional

denial that he had authorized or

approved destruction of documents by anyone. The President then acknowl?

edged that his interrogatory answer was "a truthful statement." (Tr. 255-56).

5. The fifth objection in the Olson letter is based on a cramped view of the record. Mr. Olson insists there is no indication "in the record of a sidebar conference at this point [Tr. 165-66] and no indication of the quoted state? ments of Mr. Webb or Judge Greene."

(Emphasis supplied). Overlooked are "earlier points" which reflect a sidebar where all the lawyers, including Mr. Olson, spoke about scheduling.

Admiral Poindexter's lawyer told the court that he had an hour to an hour and a half which Judge Greene noted would take everyone until 4:00. Mr. Webb estimated two hours of cross. Both Admiral Poindexter's lawyer and Mr. Olson suggested that the matter

ought to be recessed at 4:00 p.m. and the deposition concluded the next day. The court agreed. (Tr. 114-115). At 3:00, the court solicited the lawyers' views about a recess in light of the 4:00

adjournment. Mr. Olson suggested a recess, which lasted until 3:25. (Tr.

138). At the appointed hour for

adjournment, Mr. Webb, in accordance with his own desires, asked the court if it wanted to stop. The case recessed until the next day. (Tr. 165-66).

6. It is "highly inaccurate" to say that the President "readily testified" that he did not authorize the sending of the Poindexter letters or that he had never seen them before. As demon? strated earlier (Paragraph 4), the Presi? dent's denials were diluted, if not

eclipsed, by his continual claims of lack of recollection and gratuitous observations that in any event there had been no false statements. Even the page of the transcript to which Mr. Olson refers, begins with a claim of imperfect recall. (Tr. 222,1.21).

7. The criticism of Mr. Webb's ren? dition of the unresponsive answer

episode is truly preoccupation with the irrelevant. In response to the uncompli? cated question of whether the President had been told by the Tower Commis? sion that the Contras were receiving paramilitary assistance from Oliver North and the NSC in 1985 and 1986, the President said that he did not recall.

The President then began a narrative, spanning 13 lines in the transcript, explaining why he appointed the Tower Commission, that he still did not know whether there were any excess funds to have been diverted, or that there was had been any diversion. (Tr. 211). Con?

tinuing his excursion into unrespon siveness, the President began to relate his conversation with a member of the media: "and I can recall that a member of the press?" (Tr. 212). This aspect of his answer is ignored by Mr. Olson.

It was not until this point that Mr. Webb asked for permission to interrupt the President, suggesting the answer was completely unresponsive other than the "I don't recall." As Judge Greene began to speak, the President

interrupted, stating why he did not think the answer was unresponsive. The President was allowed to answer "in his own way." (Tr.212). The Presi? dent then described a conversation with the press where he said that if he had known there was any additional money from the sale of Tow Missiles, he would have given it back.

The dissonance between what occurred and Mr. Webb's recollection of events three years later transcends the insignificant. The point that was

sought to be made was that Judge Greene was aware of the "unprece? dented" nature of the proceedings and "was determined to be fair to the Presi? dent." The incident, and others vividly illustrate the point.

Consistent with the "unprecedented" nature of the proceedings, the President was accorded an unprecedented lati? tude in answering questions. Judge

Greene's general approach to President

Reagan's testimony basically was to "let President Reagan answer the ques? tion in his own way" (Tr. 212) and

Litigation Fall 1994 Volume 21 Number 1

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