I recently defended a deposition for the first time in many years having become a full-time neutral about ten years ago. My experience caused me to think about the responsibility of attorneys to adhere to standards of professional behavior and decorum. Throughout my 30-plus year career, there have consistently been calls for restoring civility to the profession. Even some scholarly law review articles. See, e.g., Civility Codes: The Newest Weapons in the “Civil” War Over Proper Attorney Conduct Regulations Miss Their Mark 24 U. Dayton L. Rev 151 (Fall 1998) Incentivizing Lawyers to Place Nice: A National Survey of Civility Standards and Options for Enforcement, 48 U. Mich. J.L. Reform 701 (Spring 2015). Despite the repetition of this plea, behavior seems to have gotten worse, not better.
A colleague who is active on Linked In regularly chronicles instances of asinine behavior to which she is subjected from opposing counsel and solicits input from her followers about similar incidents they have experienced. A review of the posts is depressing. This colleague primarily represents plaintiffs in employment cases so many of the critiques are of defense counsel. Based on my experience over the years, however, it’s not the client, it’s the attorney. Litigators on all sides of the fence too regularly engage in obnoxious, bullying behavior that is not proper, professional or productive.
In this recent deposition, I represented a colleague who was retained by an employer-defendant in a race discrimination case to conduct an investigation after the lawsuit had been filed. During the course of the deposition, this lawyer referred to me on the record as “a jerk,” and “a joke.” He derisively called me “Mr. Arbitrator/Mediator” pointing out that I had not litigated in ten years as if that meant something. Especially given that I was not representing an opposing party, it seemed to me this young lawyer was needlessly antagonistic.
I do not claim I’ve always (or even ever have) been a role model of civility. In fact, I quite regularly acknowledge that I engaged in obnoxious behavior during my days as a litigator although I like to think I had improved significantly later in my career. Even during my career as a neutral, there have been times when someone has pushed my buttons and I have reacted in a way I almost immediately regretted.
This experience caused me to redouble my efforts to conduct myself as what my grandmother would have called a mensch. Given the general state of human interaction these days, I think it’s even more important for attorneys to respect the rule of law and the judicial process. This means respecting all participants in the process litigants, counsel, witnesses, etc. Even in a community as large as Los Angeles, the legal world is a small place. Relationships matter. The most satisfying moments of my career have been when I’ve had a case referred by a former opposing counsel, been hired by a party against whom I litigated, and developed meaningful professional and social relationships with former adversaries.