Recently, I substituted for my colleague in teaching his Professional Responsibility class. The topic assigned was "Litigation Abuse." We covered the ways in which one can, through Federal Rules of Civil Procedure (e.g.,Rule 11, Rule 26, and Rule 37), seek judicial relief from the extreme misconduct addressed by those Rules. The problem, however, is that most litigation abuse falls outside of the extremes. The Rules are not well-suited to deal with just plain boorish conduct of a lawyer, party, or some other person of the legal system. Although Rule of Professional Conduct 3.4 outlines behavior that would be considered "unfair," and theoretically subject to discipline, this Rule outline extreme forms of unfairness. Moreover, the Rule is not one for which discipline is sought very often.
Nevertheless, many lawyers suffer needlessly because they think putting up with people who act like jerks is part of the job. Over years of observing lawyers who do NOT assume unacceptable behavior has to be tolerated, I describe below how these lawyers taught me (1) to stop putting up with the inappropriate behavior of others and (2) to develop ways to avoid reacting to others inappropriately myself . These methods fall into two parts--general dealings with others in litigation (this post) and conduct that occurs often in discovery (a future post).
Dealing with Other's Inappropriate Behavior
Here, it is especially important to remember that people will treat someone in the manner that one lets that person treat them. Some folks need to be told you will not allow them to cross your boundaries of unacceptable behavior. For instance, if lawyers curse a lot or yell on calls, in conferences, etc., you can tell them—quietly but firmly—that the cursing or yelling is not acceptable to you. You can also tell them that the call or conference is over and, when the lawyer can discuss matters without cursing or yelling, you will be glad to do so. Every time I had to do this with another lawyer, that lawyer changed the way she or he interacted with me. I had to repeat the message more than once in "hard" cases, but even the most irascible person learns that if she/he wants to get anything done in a case, she/he needs to stop the inappropriate behavior.
Dealing with One's Own Urge To React Inappropriately
Protecting Oneself from Sending Ill-Advised Electronic (E-Mail) Communications
In a variety of ways, opposing counsel, parties, or others can get under your skin. It may be an e-mail or letter attacking you. It may be a brief you read that misstates authorities. What I learned was that, if I every found myself angry, I had better avoid avoid sending e-mails, letters, or responding in any way. Instead, the best course is to take a break. If I had started an e-mail, I had to save it to drafts. E-mails are among the easiest ways to react in anger because they are so easy to send. If we want to behave in a civil manner, and avoid that which we find offensive, realize the great risk of emails (or, I suppose also, of text messages). Often, the e-mails saved to drafts ended up being deleted after I regained my perspective.
Three Questions as a Rule of Thumb for Any Response (Electronic, Written, or Oral)
Some of the best advice I ever received was to ask, before sending any communication or making any comments, to ask three questions: “(1) Does it [whatever I want to put in writing or say to the other peson] need to be said/written? (2) Do Ineed to be the one to say it/write it? (Is really within my responsibility to tell the other person what I want to say, or is my ego getting riled up so that the response was more personal gratification than something necessary); AND (3) Does it need to be said by me right now—or should I wait, run it by a trusted friend, and possibly not say/write anything? Only if the answer to all three of these questions was “yes” was I to write the e-mail, send a letter, or tell the other person whatever I had on my mind.
I have to admit it took a long time for me to get in the habit of asking the three questions and objectively answering them. I even had to put "1, 2, 3" taped on post-it notes attached to my phone and desktop to keep the reminder there until asking the questions became a habit. When it finally did become more of a habit (with occasional slips), I realized something unexpected. I now had
"extra" time from not engaging in unnecessary, counter-productive communications--time to do things that actually helped move the case forward, or maybe to go home early.
Professional Characterizations in Motions, Briefs, or Other Filings
In briefs and other court filings, one can write well-reasoned motions or briefs that correct inaccuracies of one's opponent without becoming vituperative. Don’t use highly charged words like “misrepresents” the facts/law. Say instead "X is mistaken in her reading of Y case," or "X is apparently mistaken in her understanding of the facts." Such an approach is far more effective than characterizing your opponent as deceitful. It helps to ask oneself whether, if you were on the other side and received the brief, how would you like the way it was written? If the brief seems aimed at the lawyer, and questions her/his character, you probably wouldn’t like it. If instead the brief seems focused on the case—the facts and law, and gives the benefit of the doubt (e.g. mistaken vs. misrepresent)--you’d probably feel better about the way the other side treated you. If doing unto others isn't motivation enough, the secret with which I conclude this post ought to convince you.
A secret that most experienced litigators know is that judges do not like written arguments that attack the other side personally. Again, the brief writer can note errors in factual representations or in descriptions of the law by characterizing them as mistaken. Judges will at times conclude that a party has crossed the line in representations to the court, but if your brief suggests it must have been accidental, the judge sees you as taking the high road. You gain credibility while the opponent loses it. Of course, in one's own briefs, it goes without saying that one needs to be scrupulously accurate in reciting facts and fair in representation of what cases hold or stand for. You don't want to be the one whose brief allows a party to contend that you were inaccurate. You will, at some point, have that happen--but when it does, you want the judge to see on reading the record and the cases that the accuser is the one who is being unfair. Credibility with the court is precious.