March 2004

Gandhi was right. Civilized law practice would be a good idea.

by Lindsay Thompson, Bar News Editor

There is only one thing in the world worse than being talked about, and that is not being talked about. — Oscar Wilde, The Picture of Dorian Gray (1891)

I got mail about last month's thoughts on changing how law is practiced. One judge said she's thinking of making it required reading for lawyers appearing in her court. A lawyer friend sent me this e-mail:

"[Y]our editorial at the close of the Feb. issue ['Change and decay, change and decay . . .'] resonated with me, particularly your comments about the responsibility of the bench in bringing litigation nonsense to an end. Well, you've said it much better than I have. When I talk about it, it sounds petulant. The closest analogy (metaphor?) I've been able to come up with is that social science blather sometimes known as 'broken window syndrome' (one bit of graffiti begets more . . .). One bit of bad acting that isn't called out (say, refusing to file an answer until the motion for default is noted) brings on more of the same (say, an answer larded out with boilerplate denials 'for lack of information . . .') leading to even more (such as the ever-popular string of bogus affirmative defenses including 'failure to state a claim upon which relief can be granted'). Yeah. Right.

"And when it comes to moving for complete answers to discovery, the metaphorical 'slum' is in full bloom, encouraging the under-supervised, institutional defense associate to file boilerplate objections (even to the stock CRLJ questions of 'ID the liability witnesses, damage witnesses and expert witnesses and produce the policy').

"In fairness to anybody who thinks I only throw rocks at defense attorneys, I've spent three weeks in trial co-defending a matter that had no business in court at all, courtesy of a jurist who didn't think he had any authority to compel any response or any place in discouraging such conduct (other than his low final judgment, entered a mere six months after the trial was over). Dave Barry has an expression: 'I am not making this up.'

. . . .

"Yes, I'd say it's the bench who will have the most say in the matter. Until it becomes more expensive to break the rules than follow them, more costly and painful to be an a**hole than to be cooperative, publicly embarrassing to conduct business under the Jolly Roger flag, it will continue. And thrive. And it will be harder and harder to explain to a potential client why 'self-help' in the form of a pipe to the knees of the tormentor is a bad idea."

I've seen, and heard about, lawyers whose antics left me wondering if we should revive shunning, making good on our laughed-at oath to avoid offensive personalities.

I'm not talking about the kind of assertive lawyering we all have to do sometimes to move a case along. And I cut some slack for lawyers who are slow getting things done. Sometimes the best of us get jammed.

What I'm talking about are lawyers who give the name "human being" a bad name.

One lawyer spent months in depositions just being insulting, and when he had a conflict he sent a colleague to come and be rude for him. Once, on the record, he bet another lawyer in the case was dishonorably discharged from the service (wrong).

Why would a lawyer call a CR 37 conference to discuss a discovery problem, then spend the conference insulting opposing counsel, not letting him answer the questions he was barking out?

I'm surprised how often senior lawyers insult young lawyers openly, accusing them — when they don't roll over because the older lawyers say to — of not having sufficient experience to understand the law; or telling them, condescendingly, that they have case decisions that support their view of a case but that they won't tell what they say or where they are.

It's interesting, too, when lawyers let their biases slip. One told me barring lawyers from discriminating based on sexual orientation would turn the WSBA into a referee for "the bruised feelings of a bunch of Martha Stewarts." (Then he marched off, in a suit that would have embarrassed Howard Dean — and a baseball cap. Martha would have been speechless.)

Got any good stories about lawyers so dreadful you were sure their bodies had been taken over by space aliens? Send them in. We'll run a selection (names probably omitted).

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Lindsay Thompson's Calvinist conscience makes sure he remembers he is a deeply flawed individual, not to mention every screw-up he has ever made in and out of the law (not to mention the e-mail he gets from readers). Add your two cents' worth at tradelaw@thompson-law.com.

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