When Confronted with Incivility, How Do You Handle It?

Scott Ealy
Sep 23, 2009 5:13 PM CST

Recently, a junior prosecutor approached me after a motion hearing.  I thought she was going to congratulate me on a successful hearing for my client.  Instead, she muttered through clenched teeth that she would adopt a harsher posture toward my clients in the future.  I didn’t say anything at the time but her boss will hear from me the next time I have to deal with her.  Because I WON’T be dealing with her.  She is not worthy.

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Paul the Magyar
Sep 24, 2009 2:21 PM CST

How do you cope when you’re confronted with uncivil behavior in your legal endeavors?

I shout obscenities at the judge from the safety of my holding cell, that is how!

Seriously, it is nice to practice ina jurisdiction where civility is much more common than incivility.  My firm’s attorney-client agreements even contain this clause: “Firm reserve the right to withdraw from the case if, after discovery and investigation, they believe the case has no merit, or if at any time Firm, in their sole discretion, determine that Client’s conduct or expectations are unreasonable or unethical; provided, however, Firm will give reasonable notice to Client to seek other counsel.  Firm reserves the right to make litigation decisions without consultation with Client, accord routine professional courtesies to opposing counsel, including such things as extensions of time to opposing counsel, relief from default by opposing counsel, and other such professional decisions.”  We will hold an opposing party in default, but not if it is the opposing attorney’s fault rather than his client’s fault.

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John A. davidson
Sep 25, 2009 4:38 AM CST

I deal with a wise old lawyer.  To limit the vitrol in our calls we talked baseball before getting down to the case at hand.  Though sometimes we just do the obligatory obscenity at one and other and once that’s done we get down to business.

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CM
Sep 25, 2009 7:06 AM CST

I completely agree with #6.  Also, was proud of one of my partners when she told a screaming adversary on the phone “I’m sorry, I have teenagers, and I’ve discovered that the louder someone talks to me, the less I can hear.  Please call me back when you can speak to me at a normal volume.”

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Hadley V. Baxendale
Sep 25, 2009 8:07 AM CST

Laugh at them. Out loud.

Problem is, you can’t really take it o the judge except in the worst cases that affect the case, otherwise you look like a whiner, and judges hate dealing with this sort of thing.  Think about excited you are when you r children present you with the case of “he called me a stupid-head.”  That is how you look.

One of my mentors told me to start making a list, and just keep it. It’s about all you can do. The judges eventually find out about them and it hurts their court cred.

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MW
Sep 25, 2009 8:37 AM CST

I prefer to share a story of civility….

Once, I had an injunction hearing scheduled for Monday in Philadelphia. We obtained expedited discovery to depose the key witness in Valdosta, Georgia on Sunday night. The deposition took place in my local counsel’s office in Valdosta. As the deposition was nearing conclusion, my host came into the conference room, tossed his office keys over to opposing counsel, and said: “John, would you mind locking up when you leave. You can just leave the keys on my porch.”

That typifiies what is really good about our profession—battle hard, but leave as friends…..(though, I’m not sure the Philadelphia bar has that level of trust!)

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Nelson Crandall
Sep 25, 2009 10:07 AM CST

Many years ago, a female associate was in chambers when opposing counsel, a well known local attorney with a reputation for being unpleasant, called her a “c—t” in front of the judge.  She responded by hitting him in the face, winning the respect of the judge and her colleagues.

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Diana
Sep 25, 2009 11:01 AM CST

How do I respond to incivility?  Badly, when it comes from the judge.  I had a judge who repeatedly called me “deary”, asked me if I was a licensed attorney, and told me I am being led around by my “short hairs” by my client.  My offense was timely submission of my client’s responses to opponents 700 interrogatories - of which my client did not know the answer to 3 questions.  Ms. Judge accused me and the client of lying about having no knowledge of these 3.

Because this was a status call, client was not in attendance.  Ms. Judge demanded that I bring client to the next hearing so according to the judge “I will get the information out of your client” and “if your client does not know the answers she should not be filing a suit”.

I stood in front of the bench totally mortified I could feel my face getting red and veins throbbing.  I kept a respectful tone and attempted to respond, but was not allowed to.  Client dropped the case because she felt she could not win - obviously.  Years later I will not go into that agency (state employment discrimination suit) and still feel that I should have come up with something more than ‘yes ma’am’ and ‘no ma;am’.

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J
Sep 25, 2009 11:02 AM CST

In my first year of practice, I filed a lawsuit against a woman who apparently had friends in high places.  Although the undisputed facts were clearly in my favor, I started receiving calls from an extremely prominent, nationally known, former-politician attorney representing her, who wanted to ignore the facts and just talk about my inexperience and how he would bury me with discovery and humiliate me at trial if I did not dismiss the case.  Despite my efforts, the conversations did not reach the merits of the case or move us toward settlement.  Soon, he was calling every day and keeping me on the phone for an hour or more.  His clear intent was to brow-beat me into submission.  Sometimes he would even have his assistant call to get me on the phone and then have me hold for 10 minutes until he came on the line.  I’ll admit it, I was intimidated.  But after several days of this, I had had enough.  I politely informed him that our phone conversations were not productive and that I would no longer be able to speak with him on the phone.  I requested that all of our correspondence be in writing.  After that, I was able to get a decent settlement for my client.

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B. McLeod
Sep 25, 2009 11:34 AM CST

Disagreeing with a few of our colleagues above, I do not think judges want practitioners constantly calling on them to referree incivility disputes.  I believe most judges would tell lawyers in their courts that they expect lawyers to be grownups and work this stuff out between them.  That being said, any lawyer can certainly control his or her own conduct in the case, and need not react to incivility that is not blocking discovery, impairing case deadlines, or otherwise substantively impacting the case.  Also, I think that when opposing counsel just seems to be inexplicably hostile, a lawyer should not be above simply asking if some action or statement of their own has perhaps inadvertently given offense.  I don’t want to have a problem with a colleague for a whole case (or even beyond the case) over some misunderstanding that could have been cleared up.  I have seen a few (mostly younger) lawyers who go after opposing counsel when their own case has a lot of problems.  I don’t know if it is due to the stress and frustration they feel with that, or if they think it diverts attention from the weaknesses in their case.  However, if it is the latter, it usually doesn’t work.  It is basically a “tell” that they understand their case is not the best.

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Lawrence Major
Sep 25, 2009 2:18 PM CST

I am a full time mediator of cases pending in state and federal court in south Florida. During the past thirteen years that I have been conducting mediations very little lack of civility has occured. Most lawyers are professional and well prepared. On the few occasions that it has happened, I find the best policy is to confront it. I will take the offending lawyer aside and point out the offensive conduct and the negative affect it will have. That has with one exception resolved the problem. In the one instance tbhat it did not work, I terminated the conference and reported the offensive conduct to the court.

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Bob Wilde
Sep 25, 2009 9:51 PM CST

I occasionally get very rude “for the record” letters. When I go to trial I always find a way to make some portion of the letters relevant to some issue and then offer them as exhibits. The response is always a very sheepish opposing counsel.

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Dave Hols
Sep 27, 2009 8:38 AM CST

I respond with sharply contrasting civility which has had an odd and unexpected consequence. The uncivil ones usually turn out to have puerile social skills and they form the unwarranted opinion that I am their friend and they want a relationship with me. Uh, no thanks.

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Andy C
Oct 2, 2009 5:17 AM CST

As a criminal defense attorney, I occasionally deal with prosecutors screaming at me that I am being unreasonable by requesting discovery or asserting my clients’ rights.  I simply walk away and tell them that if they have a problem with my request, they can bring it to the attention of the Court.

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James W. Thompson
Oct 2, 2009 3:24 PM CST

These comments are most interesting—and enlightening because several underscore the danger of dealing with anyone by telephone.  Some persons will say inappropriate things on the phone that they would not say face-to-face.

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