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closing argument
BY JASON D. RUSSELL
Litigation, Civility, and How Nice Guys Can Finish First
THE CALIFORNIA SUPREME COURT recently felt the need to adopt a
rule that requires newly admitted attorneys to swear, as part of their
oath of admission to the State Bar of California, that “I will strive to
conduct myself with dignity, courtesy, and integrity.” 1 Moreover, the
Central District and the Los Angeles Superior Court have codified
guidelines admonishing attorneys to be civil because “there has been
a discernible erosion of civility and professionalism in our courts.” 2
Litigators in California can attest to the truth of that assertion.
Overt hostility, gamesmanship, and markedly uncivil conduct often
seem more the norm than the exception. Clients often pressure lawyers
to be hyperaggressive, leading their counsel to
worry that treating “the enemy” courteously
will undermine their client relationships. Many
lawyers erroneously think judges and juries
will think them (or their cases) weak unless
they fight over every issue, no matter how
trivial. Legal scholars opine that the decline in
civility is systemic and decry the transformation
of the legal profession into a revenue-focused
industry in which clients expect their counselors to advance any argument
and use any tactic, no matter how baseless or tawdry. In such a
climate, the loss of civility is inevitable.
Since I began practicing, I have faced unprofessional conduct
countless times. Adversaries have refused to grant me routine extensions,
intentionally mailed documents on a Friday night so I wouldn’t
get them until the following week, scheduled depositions when my
child was having surgery, attacked my character, refused to shake
my hand, and filed a trivial “ex parte” on Christmas Eve that required
a response within 24 hours. My personal favorite is the opposing
counsel who refuses to produce a single document, even those he or
she admits are relevant, unless compelled by a court order.
In the face of what sometimes feels like an avalanche of poor
behav ior, the obvious temptation is to fight fire with fire. I confess
that I have occasionally succumbed. Yet experience has convinced me
that the best way to advance my client’s interest is to be professional
and civil. Two examples illustrate that nice guys do not finish last.
Recently, I moved to dismiss an action as barred by res judicata.
Although my adversary’s conduct bordered on sanctionable, my team
took the high road. While we refuted the plaintiff’s arguments, we
avoided personal attacks. Con versely, my adversary littered his brief
with invective, accusing me and my client of odious (but baseless)
wrongs. At the hearing, he harangued my client and me personally.
At one point, my client leaned over, urging me to be more aggressive.
There was no need. Our usually reserved judge had had enough:
“[COURT]: I’m going to stop you right there. Throughout this proceeding
you have disparaged the folks at the back table. I certainly
understand that you disagree with what they did. But in this courtroom
I take offense at efforts to malign the conduct or the integrity of the
attorneys. So please stop with words like ‘pretending’ and please stop
with vocal inflections such as you were using earlier in describing
their conduct. [Plaintiff’s Counsel]: That is completely false, your
Honor, with all due respect. [COURT]: Please don’t ever say ‘with all
due respect’ to me, sir. That is a statement that makes no sense to me
because it usually means you have no respect. [Plaintiff’s Counsel]:
I’m sorry, your Honor. [COURT]: Yes. You’re striking out repeatedly
today.” I think you can guess the outcome of the case.
In another case, I pitched to defend an action filed by an attorney
infamous for his Rambo tactics. All my competitors promised to be
just as, if not more, abrasive. I promised the opposite. I told the client
we would immediately make friendly contact with the other side,
Our civility did not mean that the case was not hard fought, just
that my client’s resources were devoted to issues that mattered.
and narrow the issues from the outset. We did precisely that. The
plaintiff’s counsel, while initially wary, quickly came to appreciate
the more civil and nuanced approach of actually focusing on the key
issues. As a result, we pared the case substantially and negotiated an
efficient and cost-effective discovery plan and trial phasing by avoiding
the needless (and costly) fights that typically pervade complex liti -
gation. Scheduling depositions, hearings, and discovery obligations,
normally the bane of any litigator’s existence, were mundane events
easily handled to everyone’s satisfaction. Our civility did not mean
that the case was not hard fought, just that my client’s resources
were devoted to issues that mattered. At the successful conclusion of
the action for my client, the plaintiff’s counsel asked my permission
to directly speak to my client so he could tell them that he wished all
cases could be handled in such a manner and that he was settling for
far less than he ever thought he would because of the way the case
was litigated. The client was not only thrilled with the outcome but
also with the economical manner that the case was handled and has
since retained us several times.
Engaging in petty be havior disserves our clients. Not paradoxically,
some of my hardest-fought cases were against unfailingly courteous
opposing counsel. You can be zealous and professional, and we all
should strive to do so in every case. It is not just the right thing but
the good thing to do for you and your client.
n
1
Cal. R. Ct. 4, available at http://www.courts.ca.gov.
2
U.S. Dist. Ct., Central Dist. of Cal., Civility and Profes sionalism Guidelines,
Preamble; Super. Ct. of Cal., County of Los Angeles Guide lines for Civil ity in
Litigation, App. 3.A.
Jason D. Russell is a litigation partner in the Los Angeles office of Skadden
Arps Slate Meagher & Flom.
60 Los Angeles Lawyer April 2016