Transcript Could We Have a Little Civility Here?

IBA
Applied Prof. Prog.
CONFIDENTIAL
© 2011 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of
Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and
may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
Civility in a
Sometimes Uncivil
World
Denise K. LaRue
U.S. Magistrate Judge
Donald R. Lundberg
Barnes & Thornburg LLP
CONFIDENTIAL
© 2011 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of
Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and
may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
What is incivility?
• Rudeness, esp. unnecessary rudeness
– We’re talking about protecting our working
conditions
• Unsupported imputation of improper
motives
• Violations of the Rules of Professional
Conduct. Maybe, but …
• Disrespect for the time/resources of
others. McKinney, J.
CONFIDENTIAL
© 2011 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of
Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and
may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
ABA Canon 17-Ill Feeling and
Personalities Between Advocates (1908)
“Clients, not lawyers, are the litigants. Whatever
may be the ill-feeling existing between clients, it
should not be allowed to influence counsel in
their conduct and demeanor toward each other
or toward suitors in the cause. All personalities
between counsel should be scrupulously
avoided. In the trial of a cause it is indecent to
allude to the personal history or the personal
peculiarities and idiosyncrasies of counsel on
the other side. Personal colloquies between
counsel which cause delay and promote
unseemly wrangling should also be carefully
avoided.”
CONFIDENTIAL
© 2011 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of
Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and
may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
ABA Canon 18. Treatment of Witnesses
and Litigants (1908)
“A lawyer should always treat adverse
witnesses and suitors with fairness and due
consideration, and he should never minister to
the malevolence or prejudices of a client in the
trial or conduct of a cause. The client cannot be
made the keeper of the lawyer’s conscience in
professional matters. He has no right to
demand that his counsel shall abuse the
opposite party or indulge in offensive
personalities. Improper speech is not excusable
on the ground that it is what the client would say
if speaking in his own behalf.”
CONFIDENTIAL
© 2011 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of
Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and
may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
Is this a good civility model?
CONFIDENTIAL
© 2011 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of
Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and
may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
Costs of Incivility
• Transactional work: costs are often
internalized
• Litigation: costs are often externalized
• Challenge: how can we internalize the
costs of incivility in litigation matters?
• Do we need a state court equivalent of
28 USC sec. 1927?
CONFIDENTIAL
© 2011 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of
Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and
may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
28 USC § 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.”
CONFIDENTIAL
© 2011 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of
Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and
may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
Who should bear the costs of
incivility?
•
•
•
•
Lawyer
Client
Lawyer and client
Is it fair to impose the costs of uncivil
lawyer behavior on the client who hired
the uncivil lawyer?
CONFIDENTIAL
© 2011 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of
Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and
may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
Responses to Incivility
• The role of the judge
– Handle on-the-spot
– Sanctions
– Disciplinary referral
• The role of other lawyers
– Informal mechanisms/peer pressure
– Seek sanctions
– Disciplinary referral
CONFIDENTIAL
© 2011 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of
Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and
may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
Thinking About Incivility
• Context is important.
• Perspectives on civility/incivility are
culturally driven.
• Are the cultural norms of civility in the
profession evolving? For the better or
worse? Were there “good old days?”
• Modeling civil behavior: Compare
Indiana Supreme Court to Michigan’s or
Wisconsin’s.
• How to keep (and improve) status quo?
CONFIDENTIAL
© 2011 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of
Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and
may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
Wisconsin Supreme Court
• Dysfunctionality run amok.
• Considering hiring a group dynamics
expert?
• Justice Roggensack accused the Chief
Justice of trying to pick a fight.
• Justice Bradley accused Justice
Prosser of trying to choke her.
• Special prosecutor appointed.
CONFIDENTIAL
© 2011 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of
Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and
may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
Michigan Supreme Court
• Campaign spending for 2008 Chief Justice
election = $5.9 million.
• TV ad showing dramatization of Chief Justice
Taylor sleeping on the bench.
• Three justices made Judicial Tenure
Commission complaints about another
justice’s disclosure of internal deliberations.
• Concurrence: “[Justice Weaver’s]
transformation is based neither on principle
nor on ‘independent’ views, but is rooted in
personal resentment.”
CONFIDENTIAL
© 2011 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of
Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and
may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
Judicial Modeling: Setting the Right
Tone?
• Order by U.S. District Judge Sam Sparks:
• “You are invited to a kindergarten party….
This party will feature many exciting and
informative lessons:”
– How to telephone and communicate with a lawyer.
– Howe to enter into reasonable agreements about
deposition dates.
– Why it is neither cute nor clever to attempt to
quash a subpoena for technical failures of service
when notice is reasonably given.
– An advance seminar on not wasting time of a busy
federal judge and his staff because you are unable
to practice law at the level of a first year law
student.
CONFIDENTIAL
© 2011 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of
Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and
may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
Another Perspective
Chief 5th Cir. Judge Jones to Judge Sparks:
"Dear Sam, …. Frankly, this kind of rhetoric is
not funny. In fact, it is so caustic, demeaning,
and gratuitous that it casts more disrespect on
the judiciary than on the now-besmirched
reputation of the counsel. It suggests either that
the judge is simply indulging himself at the
expense of counsel or that he is fighting with
counsel in what … is surely not a fair contest. It
suggests bias against counsel. … Ultimately,
this kind of excess, as I noted, reflects badly on
all of us. I urge you to think before you write."
CONFIDENTIAL
© 2011 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of
Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and
may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
What’s Fairness Got To Do, Got To Do
With It?
• New Florida Attorney’s Oath:
• “To opposing parties and their counsel, I
pledge fairness, integrity, and civility, not
only in court, but also in all written and
oral communications.”
• What are the implications of an oath to
be “fair” for the adversary system?
CONFIDENTIAL
© 2011 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of
Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and
may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
7th Cir. Standards for Professional
Conduct
• http://www.ca7.uscourts.gov/Rules/rules
.htm#standards
– Lawyers’ Duties to the Court
– Lawyers’ Duties to Other Counsel
– Court’s Duties to Lawyers
• Southern District Local Rule 83.5(b)
• Northern District Local Rule 83.5(b)
• “These standards shall not be used as a
basis for litigation or for sanctions or
penalties.”
CONFIDENTIAL
© 2011 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of
Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and
may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
7th Cir. Standards - Highlights
• Not reflect ill feelings of our clients.
• Not attribute bad motives w/o good
cause.
• Adhere to express promises and
agreements, oral or written.
• Stipulate to undisputed, relevant
matters.
• Not manipulate timing of filing or service
for delay or tactical advantage.
CONFIDENTIAL
© 2011 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of
Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and
may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
7th Cir. Standards - Highlights
• Consult on scheduling to avoid conflicts.
• Accommodate previously scheduled conflicts,
including vacations.
• Agree to reasonable requests for extensions
of time.
• Act in deposition as if judge were there.
• No default w/o notice to known opposing
counsel.
• No uninvited copying to court of inter-counsel
correspondence.
CONFIDENTIAL
© 2011 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of
Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and
may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
War Stories That Make a Point I
• Trial resulting in adverse jury verdict.
• Lawyer for prevailing party went to the
opposing lawyer to shake his hand.
• The lawyer refused and just pushed past.
• 20 years later, lawyer remembers that one
minor petulant act lacking in civility which
defines other lawyer for decades.
• Remember how long a foolish uncivil act can
color another lawyer's perception of you.
CONFIDENTIAL
© 2011 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of
Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and
may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
War Stories That Make a Point II
• Lawyer appointed to represent children
in neglect case. Inappropriate sexual
contact by step-father.
• Mom sides with step-father.
• Counsel for mom and step-father acts
like jerk to opposing counsel when his
clients are around.
• Acts like best friends when clients are
elsewhere.
CONFIDENTIAL
© 2011 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of
Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and
may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
War Stories That Make a Point III
Judge McKinney often recounts the
deposition transcript where 2 lawyers
argued over the time of day when a
deposition reconvened--which then turned
to a debate over which lawyer had the
finer watch. (As if it matters, it was a
debate between a Rolex and an Omega.)
CONFIDENTIAL
© 2011 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of
Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and
may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
War Stories That Make a Point IV
• Young lawyer worked on a matter where
government represented by a seasoned
Assistant U.S. Attorney.
• Amount at issue was small.
• AUSA took the time to “teach the ropes.”
• Young lawyer let her know that he
appreciated the chance to work with her.
• She reciprocated that it was her pleasure,
too.
CONFIDENTIAL
© 2011 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of
Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and
may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
War Stories That Make a Point V
•
•
•
•
•
•
Tough and important case. Clients detested and
mistrusted each other. Aggressive lawyering, but a
generally cordial working relationship.
Case ended in the Supreme Court in a tough loss for
one side.
Lawyers were on the phone within minutes
discussing it.
“Losing” lawyer sincerely congratulated “winner.”
“Winner” offered a sincere "tough break" to ”loser.”
The type of professional courtesy one sees less and
less but made “loser” proud to be a lawyer.
CONFIDENTIAL
© 2011 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of
Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and
may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
War Stories That Make a Point VI
•
•
•
•
•
•
Out-of-state jury trial.
The opposing firm was well-known for playing dirty.
Numerous ugly exchanges throughout the case.
At a break in trial, during courtroom exchange of
exhibits that had been a bone of contention for
weeks, one counsel literally screamed at opposing
counsel in the middle of the courtroom.
Nearly 2 years later, she called out of the blue to
apologize for her incivility.
“I was floored but happy to accept. In my view, the
exchange demonstrated that it is never too late to
offer an apology if one is warranted, both in life in
general and in the practice of law in particular.”
CONFIDENTIAL
© 2011 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of
Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and
may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
War Stories That Make a Point VII
• Lawyers are in a serious automobile
accident on the way to an out-of-town
hearing.
• They notify local counsel from the
hospital ER where they were taken by
ambulance.
• Local counsel moves for a continuance
of the hearing.
• Opposing counsel objects.
CONFIDENTIAL
© 2011 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of
Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and
may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
Discussion Scenario 1
• Hotly disputed IP case.
• Out-of-town depositions.
• Plaintiffs’ counsel secures hotel rooms
and extracts agreement from hotel not
to provide rooms to opposition.
• Defense counsel contacts hotel for
rooms and is turned down.
• Source: ABAJournal News 6/9/2008
CONFIDENTIAL
© 2011 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of
Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and
may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
Scenario 2—The Deposition
Or Too Much Testosterone
For One Room
CONFIDENTIAL
© 2011 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of
Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and
may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
Texas (Indiana?) Style Deposition
CONFIDENTIAL
© 2011 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of
Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and
may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
Texas (Indiana?) Style Deposition
CONFIDENTIAL
© 2011 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of
Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and
may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
Scenario 3—Transactional Lawyers Can
be Uncivil, Too
© 2011 Barnes & Thornburg LLP. All Rights Reserved.
CONFIDENTIAL
© 2011 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of
Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and
may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
31
But lawyers can be civil, too.
CONFIDENTIAL
© 2011 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of
Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and
may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
Scenario 4--Metadata
• Lawyer e-mails Word format complaint
in last-ditch effort at pre-suit settlement
• Receiving lawyer “mines” document for
metadata
• Locates the following comments
inserted by opposing-party:
CONFIDENTIAL
© 2011 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of
Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and
may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
CONFIDENTIAL
© 2011 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of
Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and
may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
CONFIDENTIAL
© 2011 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of
Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and
may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
Scenario 5—Courtroom Conduct
• Plaintiff’s counsel—inexperienced, female
lawyer
• Defense counsel—”grizzled” male veteran
• Defense counsel refers to plaintiff’s counsel
as “missy”
• Defense counsel frequently interrupts
plaintiff’s counsel, speaks condescendingly
CONFIDENTIAL
© 2011 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of
Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and
may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
Scenario 6—Default Judgment
• Lawyer A engages in unsuccessful, presuit negotiations with Lawyer B.
• Lawyer A files suit. Serves opposing
party, not Lawyer B. See Trial Rule 4.
• No entry of appearance for opposing
party.
• Lawyer A seeks default judgment w/o
notice to Lawyer B. See Trial Rule 5(B).
CONFIDENTIAL
© 2011 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of
Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and
may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
Did Lawyer A Act Uncivilly?
• “[K]nowledge [of defendant’s
representation] gives rise to a
corresponding duty under the Rules …
to provide notice before seeking any
relief from the court…. Counsel’s
conduct is consistent with Trial Rules 4
and 5 but … is unacceptable under the
Rules of Professional Conduct.”
– Source: Smith v. Johnston, 711 N.E.2d 1259 (Ind. 1999)
CONFIDENTIAL
© 2011 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of
Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and
may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
END
Donald R. Lundberg
Barnes & Thornburg LLP
[email protected]
CONFIDENTIAL
© 2011 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of
Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and
may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.