June 2000

Hockey or Civil Litigation?

by Richard C. Eymann
WSBA President

Last night I went to a Spokane Chiefs hockey game. The Chiefs are in the playoffs, going for the Canadian/American Memorial Cup. Among the crowd of over 8,000 were many lawyers that I recognized. As I watched these 17- to 20-year-old, up-and-coming hockey stars, it reminded me of our current adversarial system of justice. There was high-sticking, body-checking, tripping, slashing, roughing, hooking, interference, obstruction, and fist fighting. Was I watching litigation, or was I watching hockey?

Older lawyers today (and by older I mean anyone over my relatively young age of 54) say that compared to when they started practicing law, today’s new breed show less respect toward what George Washington wrote about:

In disputes, be not So Desirous To Overcome as not to give Liberty to each one to deliver his Opinion and Submit to the Judgment of the Major Part especially if they are Judges of the Dispute.

George Washington, 86th Rule from 110 Rules of Civility and Decent Behavior in Company and Conversation.

When polled at a recent National Association of Bar Presidents meeting, 90 percent of the presidents-elect of state and local bar associations believed that lack of respect is a problem in their jurisdictions. Over 50 percent felt that the problem existed not only among lawyers, but also between lawyers and judges.

Federal District Court Judge and former law school dean Louis Pollack notes that less communication results from a growing polarization within the Bar. He said lawyers tend to gather more in specialized groups that reflect either the firms where they work or their narrow areas of practice such as claimant or defense, debtor or creditor, prosecution or defense. From their small groups, attorneys look out and see lawyers in the other groups from a distance and are more inclined to question their actions and motives. The other side is the "bad guys" or "enemies," says Judge Pollack, while "our side" represents truth, justice and the American way. We do know that when lawyers speak with each other, it is often as if their minds are tilted by years of seclusion within their smaller practice groups.

It follows that too often our adversary system lacks civility and is not a search for truth, fairness and justice, but rather is a match between the meanest of lawyers, or who can pay for the best experts, or who can pay for the "high-priced attorney." Civility refers to the respect accorded other lawyers, the courts, litigants, clients and all other participants in the legal system. It is the foundation of professionalism in the practice of law. It relates to ethics and attorney discipline, and as our elder lawyers say, it is the most missed aspect of the "way it used to be."

Think about it for a moment. Civility affects not only how lawyers treat each other, but also how clients treat us, how the media treats us, and at times, how the judges treat us. How can we seek respect from the general public if we do not respect one another? Do not fool yourselves — clients realize that their legal bills are increased by protracted discovery, litigation delays and repeated attempts to contact opposing counsel. In the end, this incivility not only takes the fun out of the practice of law, but harms us all —lawyers and clients alike.

Recognizing that I may be only preaching to the choir (civil lawyers who read the president’s column), I still call upon each member of the Bar to be civil as she/he practices law. It is easy to blame the other lawyer, the other client, anybody, for your defeats or losses. Public opinion polls show that 99 percent of all Americans believe that their own behavior is civil, and lawyers are no different. The overwhelming percentage also think it is others’ behavior which is less than civil. Please reassess your actions, for their effect on the profession and the practice of law is much greater than we recognize or would like to admit. It will take all of us — courts, practicing lawyers, law schools, public and the media — to work together to combat the problem of incivility in the practice of law (which, ironically, is to provide justice to all).

Some of my best friends in the legal community are defense lawyers in the area of civil litigation. I respect what they do; they get little thanks and are often under the circumspect eye of some person in another state who questions each time entry. As a plaintiff’s lawyer, I communicate with these advocates on a daily basis. I hear them complain about some of my fellow plaintiff’s lawyers, their tactics, their insensitivity and rudeness. I have also experienced a few defense counsel with these traits. Fortunately, they are a minority, but it only takes one to wreck your day, and if you are not careful, cause you to resort to tactics that are reciprocal instead of professional.

A healthy tension between plaintiff’s counsel and attorneys representing defendants is the bedrock of the adversarial system. A cooperative and truthful relationship is in the best interest of the clients and our civil justice system. Often times the actions and motives of an opponent are misinterpreted. Anger becomes a knee-jerk reaction. I must take responsibility and admit that I, too, have fallen into that trap.

The better response is to never lose your temper. If you are right, you have no need to lose it. If you are wrong, you cannot afford to lose it. More often than not, the misunderstanding can be amicably settled, thereby strengthening the professional relationship. In instances where the opponent’s dealings are persistently uncivil and dishonest, say to them what you mean, mean what you say, but do not say it "mean." It is okay to disagree, but it is not okay to be disagreeable.

This is not just a lawyer issue. The public has the right to insist on civility in their legal system. Whatever ails the legal system affects the rights and remedies of all citizens. Many clients expect their lawyer to be the toughest, ugliest and meanest lawyer in the world, but they fail to consider the long-range ramifications of such a tactic. Likewise, the public must be responsible in its demands on the legal system as a whole and on attorneys as individuals.

I began my term as president by speaking to the improvement of the perception of the legal system, its lawyers and our judiciary. By returning to the "good old days" in the practice of law, I believe we can make great strides in that effort. Although some say that the best days of practicing law are over, are we just going to throw in the towel? It is not yet too late to revitalize the cooperation that once characterized our profession. Therefore, I ask you today as you read this to talk to your partners, your associates, and especially the young lawyers, and ask them that while not neglecting their advocacy necessary to meet client needs, to remember their duty to the profession, to secure its future in our eyes and the public eye. Keep the hockey on the ice.

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