Countering Unprofessional Behavior: Civility in Litigation and Navigating Difficult Opposing Counsel

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You may not have heard the phrase before, but most likely you have encountered a “litigation terrorist” – an attorney who deliberately creates chaos in litigation.  This is a growing trend in litigation and can manifest itself in countless ways: e.g., promulgating outrageous and overwhelming discovery demands; delaying production of discovery responses via ongoing frivolous objections; engaging in repeated allegations of unethical behavior; early morning and late-night service of documents due on earlier dates; repeated emails on Sundays and holidays; an overwhelming number of phone calls; serial lawsuit and motion filings; and other tactics to burden and pressure opposing counsel.

Rules of Professional Conduct

The Rules of Professional Conduct speak to the issue of civility and respect in advocacy. These rules instruct us not only on ethical issues such as confidentiality, conflicts of interest, and duties to clients past and present, but also on the general notion that attorneys should be fair to opposing counsel, refrain from engaging in prejudicial conduct towards the administration of justice and maintain the decorum of the tribunal.

For example: “[A] lawyer must also act … with zeal in advocacy upon the client’s behalf — [a] lawyer is not bound, however, to press for every advantage that might be realized for a client … The lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.”

Regardless of the clarification that zealous advocacy does not equate to offensive tactics or a lack of courtesy, there still exists a perceived decline of professionalism among many in our profession. To further address the concerns, the ABA created an aspirational standard for civility titled “Guidelines for Litigation Conduct” based on standards adopted by the United States Court of Appeals for the Seventh Circuit. 

In the Introduction, the Guidelines note that deteriorating civility not only interrupts the administration of justice and diminishes public confidence in attorneys, but also makes the practice of law less rewarding. Uncivil, abrasive, hostile or even abusive conduct by and between lawyers impedes and may even deny justice. Therefore, the Guidelines are intended as a model code of professionalism for states to embrace to ensure attorneys can meet the profession’s essential purpose of resolving disputes rationally, peacefully, and efficiently. 

Following the Golden Rule 

Many states, courts, and professional organizations have drafted professionalism codes or guidelines to assist attorneys in recognizing conduct that may be unprofessional or uncivil.

For example, the U.S. Bankruptcy Court for the Southern District of California, in its published Code of Conduct, cited the Golden Rule: “We – judges, lawyers, court staff, parties – all have a responsibility in ensuring that we preserve the legacy of this institution by conducting ourselves according to the Golden Rule – to treat others as we ourselves would like to be treated.

The rule goes on to state that, although we are in an “inherently adversarial system,” the experience should not be antagonistic or hostile. “Civility is paramount and not to be confused with weakness.” The rule also provides means of enforcement, allowing the court to take any appropriate measure to address violations – such as sanctions and referral of the matter to the disciplinary body of any court before which the attorney has been admitted to practice.

Similarly, several state bars, such as New York and Virginia, have set forth principles of behavior lawyers should aspire to. While lacking the teeth to discipline violations, these published standards show an effort to encourage attorneys to “confirm the legal profession’s rightful status as an honorable and respected profession where courtesy and civility are observed as a matter of course.”

Other states require a promise of courtesy in their oath for newly-admitted attorneys. For example, South Carolina’s Lawyer’s Oath reads, in pertinent part: “I do solemnly swear (or affirm) that: … To opposing parties and their counsel, I pledge fairness, integrity, and civility, not only in court, but also in all written and oral communications …”

This push towards civility shows that governing bodies of the legal profession understand the importance of the issue and the need for change. In practice however, civility is difficult to enforce, and it is rare that instances of incivility are disciplined.

Giving Teeth to the Law

Despite the difficulty in disciplining incivility in litigation, there are instances where so-called “litigation terrorists” have been chastised by the courts. Take for example a recent unpublished New York opinion. Hindlin v. Prescription Songs LLC. In Hindlin the dispute concerned music publishing and production agreements. Defendants sought sanctions for alleged unprofessional behavior exhibited by opposing counsel in a deposition, which included over 300 improper speaking objections, instructions (without a lawful basis) to the witness to refrain from answering over 30 questions, and other alleged instances of abusive and unprofessional behavior.

The court sanctioned the attorneys who engaged in this unprofessional activity with fees and expenses, as well as a mandated CLE on civility (providing the instructor with a copy of the deposition transcript at issue to use for an example of uncivil sanctionable behavior), after finding that the attorney accused of the conduct had exhibited unprofessional, bullying behavior before. The court stated that incivility impedes legal proceedings and tarnishes the profession – finding that “[o]ffensive and abusive language by attorneys in the guise of zealous advocacy is plainly improper, unprofessional, and unacceptable.”

Likewise, a judge in California significantly reduced a fee award to an attorney who demonstrated a lack of civility. In deciding to not award the full amount requested, the court noted: “Attorney skill is a traditional touchstone for deciding whether to adjust a lodestar. Civility is an aspect of skill. Excellent lawyers deserve higher fees, and excellent lawyers are civil. Sound logic and bitter experience support these points.”

These cases unequivocally illustrate why hostilities between counsels should be avoided. It is heartening to see the approach many judges are taking when faced with attorneys who take “zealous advocacy” too far.

Working around Incivility

Even with the push for professionalism in the legal world, litigators are likely to encounter attorneys who intend to make litigation as chaotic as possible. However, there are ways to reduce the impact this behavior will have on your case.

1. Keep the end goal in mind, remember that opposing counsel is not your enemy.
2. Be prepared, do your research, and remain firm. Establish credibility with opposing counsel by having authority to support your positions.
3. Do not rush to respond to offensive communications. Do not allow opposing counsel to make you angry, and do not respond based on emotion.
4. Remember that not every concession is a loss. Litigation, and especially discovery, is an ongoing negotiation and there is a give and take. Set up calls with opposing counsel (do not limit yourself to written communications) and work to establish a cadence for these negotiations and discussions.

By following these practices, you may effectively disarm litigation terrorists. By not falling into the trap of responding to aggression with aggression, you will be able to keep a level head and effectively serve your client’s needs.