Delaware Business Litigation Report

Curing Incivility: How and When Should Judges Act?

Authored by  Edward M. McNally
Originally published in the Delaware Law Weekly  l  September 28, 2011

A recent letter from a Delaware Superior Court judge gained national attention for its criticism of the lawyers involved in pending cases before it and particularly for the court’s novel remedy — a mandatory Sunday session in civility.

While I have no opinion on whether the judge’s reprimand was deserved or not, her attempt to call attention to what she saw as incivility points out the need to address incivility in civil litigation. Lawyer squabbling and other ill-mannered acts only breed disrespect for the law.

After all, the rule of law is supposed to be a step up from the use of force to settle disputes. But if the lawyers seem to be acting to avoid resolutions based on merit in favor of who has the most abusive advocate, then the law is no better than “might makes right.” We cannot let that happen. 

WHAT IS INCIVILITY?

To solve a problem, it helps to first define it. Incivility is conduct that goes beyond strong advocacy of one’s position based on its merits to seek advantage by conduct that is lacking in respect for your opponent or the tribunal. Incivility is not just name-calling (although that is surely not civil). It includes anything that exhibits disrespect in the broadest sense.

Here are two examples that might not fit the common conception of incivility, but are just that. In one case, we agreed to an opponent’s request to extend the deadline to take a deposition to a date after the discovery cut off. That extension also permitted opposing counsel to see our answers to a set of interrogatories due on that same deadline. When I asked opposing counsel for a day or two extension to file our interrogatory answers, but before the extended deposition date, our opponent refused. That was not polite, caused us to work very late and reflected a lack of appreciation for the courtesy we extended. It was not a civil response.

The same may be said of lawyers who file papers much longer than necessary. Not only does that burden the opposing lawyer, but more importantly it burdens the conscientious judge who wants to read all the filings to do her job properly. That burdening of the court needlessly is not civil in the sense that it may frustrate getting to the merits by diverting a court with an already heavy docket to do anything other than decide on the judge’s gut reaction, in the time available. Excess filings are not “civil” either.

WHAT HAS WORKED

Many years ago, incivility was particularly common in depositions. Improper objections, instructions not to answer and even name-calling occurred regularly. After one particularly abusive deposition, the Delaware Supreme Court strongly criticized a well-known lawyer by a public condemnation of his conduct. Other courts followed with similar criticisms of bad deposition conduct. Now that sort of deposition tactic is rare. The public sanction worked. Why?

Even the most callous lawyer fears public sanction. He knows, deep down, that clients will think he is tainted and their case possibly prejudiced by his damaged reputation. That lawyer does not want to lose clients. He then will avoid possibly sanctionable conduct. He would be a fool not to given the risk involved. After all, in the great majority of cases, the disruptive lawyer really gains little for his client by his antics. The gain is too small for the risk.

WHAT WILL NOT WORK

Unfortunately, the use of public reprimands is not a universal cure for all incivility.

Litigation is dragged down not by any single uncivil act. Rather, it is the cumulative effect of many small offenses that together cause litigants to lose respect for the litigation process.

It is simply not practical for any judge to monitor every case, to step in at each uncivil act. And because each such incivility seems small by itself, a public sanction also seems too harsh.

No matter how annoying, it is wrong to use a sledgehammer on a fly. Hence, public reprimands are seldom given and this remedy will not cure uncivil conduct.

WHAT MAY WORK

To begin with, everyone who has seen uncivil conduct by a younger lawyer wishes his or her supervisor were a better mentor. Efforts like the inns of court are designed to provide institutional mentoring. Law firms are well advised to teach civility. That will benefit the firms’ reputations over the long run. However, better mentoring has not prevented incivility. We need to do better.

This brings us back to that Delaware judge and her proposed Sunday school remedy. While some may feel her remedy was too strong, that would depend on the facts, and those facts are known only to the participants directly involved in that litigation.

But her basic idea is a good one. If the courts would call in the lawyers involved in uncivil conduct, explain how that both is burdening the court and diminishing their reputations, some good will come out of that effort.

Of course, the court might also remind the lawyers that public sanction is possible. I have seen this work in practice more than once. 

 A few well written, pointed opinions will also help with incivility. Lawyers will follow a court opinion or two that sanctions an unjustified refusal to fairly answer an interrogatory or to grant a justified rescheduling or the use of harsh language. In short, the judges need to act. 

Finally, lawyers need to wake up and recognize that their conduct may unknowingly contribute to incivility. Those of us who make our livings in litigation should understand that the courts are the tools of our job. We need to take care of our tools. Filing excessive pleadings and other conduct that may seem innocuous to us but that needlessly burdens our judges is fundamentally uncivil. So before we criticize one judge’s efforts to improve civil litigation, maybe we need to look in the mirror and help out. 

 

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