Transcript CIVILITY IN A SOMETIMES UNCIVIL WORLD

CIVILITY IN A
SOMETIMES UNCIVIL WORLD
Hon. Cale J. Bradford
Indiana Court of Appeals
Hon. Denise K. LaRue
U.S. Magistrate Judge Southern District of
Indiana
April 23, 2015
What is Incivility?
• Rude behavior aimed at opposing
counsel, client and Court
• Making unsupported accusations of
improper motives against opponent
• Disrespecting the time/resources of
others
• Violations of the Rules of Professional
Conduct
Is This Model of Civility Expected?
Factors Contributing to Incivility
• Law practice viewed as a business vs. a
profession
• Technology and the increased pace of life
• TV shows that glamorize “winning at all
costs” and outdated belief in “zealous
advocacy”
• Growth of the legal community
• Fewer jury trials but increase in discovery
practice
Kays v. Penske Logistics, Inc., et al.,
1:03-cv-0735-SEB-VSS (S.D. Ind. Feb. 3, 2005)
• Even niggling quarrels command the
Court’s time and attention in order to be
resolved
• As officers of the Court, counsel have an
obligation to follow the rules of practice
and procedure “to a tee”
• When slip-ups occur, a “detached and
professional colloquy between counsel is
appropriate and should be undertaken”
IP Innovation L.L.C., v. Thomson, Inc.,
1:03-cv-0216-JDT-TAB (S.D. Ind. Apr. 8, 2004)
• Court felt “compelled to address a tone
of incivility in Plaintiff’s submissions”
• The Court encourages strong advocacy,
but Plaintiff’s “accusatory and combative
approach does not further this objective”
Why Should We Embrace
Civility?
• Not doing so hurts your client
–Increased costs and fees
–Delays resolution of the
dispute
–Less effective
Why Should We Embrace
Civility?
• Hurts the Individual Lawyer
–Destroys reputation
–Adds unnecessary stress
–Leads to disciplinary proceedings
–Can be costly
Why Should We Embrace
Civility?
• Hurts all of us
–Lowers the image of the entire
legal community
–Negative impact on the public’s
perception of obtaining justice
• “To me, the case for civility is
overwhelming. I am unable to understand
why one would abandon civility in favor of
boorish, bullying, obnoxious, unfair
behavior that is harmful to his reputation
and in most instances, to the interests of his
client. Not only does civility cost nothing,
but it also holds the promise of sparking
benefits.”
--Gene W. Lafitte, former president
of the American College of Trial Lawyers
28 U.S.C. § 1927
“Any attorney or other person admitted to
conduct cases in any court…who so
multiplies the proceedings in any case
unreasonably and vexatiously may be
required by the court to satisfy personally
the excess costs, expenses, and attorneys’
fees reasonably incurred because of such
conduct”
Ind. Code § 34-52-1-1(1)
(b) In any civil action, the court may award
attorney’s fees as part of the cost to the
prevailing party, if the court finds that either
party:
– (1) brought the action or defense on a claim or
defense that is frivolous, unreasonable, or
groundless;
– (2) continued to litigate the action or defense after
the party’s claim or defense clearly became
frivolous, unreasonable, or groundless; or
– (3) litigated the action in bad faith.
U.S. Dist. Ct. S.D. Ind. Local Rules
expect lawyers to confer…..
• L.R. 6-1 Extensions of time;
• L.R. 7-1(g) Motions for fees, sanctions and
disqualification;
• L.R. 30-1(d) Scheduling depositions;
• L.R. 37-1 Discovery disputes.
Indiana Trial Rules expect lawyers
to confer…..
Informal Resolution of Discovery Disputes -Trial Rule
26(F):
• Before any party files any motion or request to compel
discovery pursuant to Rule 37, or any motion for
protection from discovery pursuant to Rule 26( C), or
any other discovery motion which seeks to enforce,
modify, or limit discovery, that party shall:
•
(1) Make a reasonable effort to reach agreement
with the opposing party[…]; and
•
(2) Include in the motion […] a statement showing
that the attorney making the motion […] has made a
reasonable effort to reach agreement with the
opposing attorney(s) […]
Loparex, LLC v. MPI Release Technologies, LLC,
2011 WL 1871167 (S.D. Ind. 2011)
An electronic ultimatum is not a good faith
attempt to resolve a discovery dispute.
Rather, the local rule contemplates an actual
meeting with a date, time, and place--whether by telephone, videoconference, or
(if counsel’s location permits) preferably
face-to-face. An old-fashioned chat over
coffee might prove especially productive.
Loparex, LLC v. MPI Release Technologies, LLC,
2011 WL 1871167 (S.D. Ind. 2011)
…Real-time interaction often provides the
best forum for hashing out disputes.
Whereas a faceless exchange of carefully
worded and often pointed emails usually
solves little except perhaps providing a false
moment of triumph to the person pressing
the “send” button.
Indianapolis Bar Association
Standards of Professionalism
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Commitment
Character
Competence
Courtesy
Community Involvement
Seventh Circuit Standards –
Four Components
Lawyers’ Duties to Other Counsel
Lawyers’ Duties to the Court
Courts’ Duties to Lawyers
Judges’ Duties to Each Other
“And do as adversaries do in law …
strive mightily but eat and drink as
friends.”
– William Shakespeare, The Taming of
the Shrew
“Not too many Americans even
remember that our society once
actually trusted and respected
lawyers.”
--U.S. Supreme Court Justice Sandra
Day O’Connor
CIVILITY IN A
SOMETIMES UNCIVIL WORLD
Hon. Cale J. Bradford
Indiana Court of Appeals
Hon. Denise K. LaRue
U.S. Magistrate Judge Southern District of
Indiana
April 23, 2015