Oregon State Bar Bulletin — APRIL 2002
| Is Winning Everything? |
It has been suggested before on these pages that lawyers who prefer to engage in hardball litigation should be prepared to lose. Unfortunately, that message has not gotten through to many lawyers or their clients. Despite the oft-repeated message that 'hardball' doesn't work because it is bad advocacy, bad for lawyers, bad for the profession, and judges do not like it, many lawyers and clients still believe it works.1
What is 'hardball'? According to an article on 'Rambo' in the March 1988 ABA Journal:
Hardball is taking the most difficult position for your opponent that your client will live with - and then doing what you say you will do. You never, ever back down.
1. A mind set that litigation is war and that describes trial practice in military terms.
2. A conviction that it is invariably in your interest to make life miserable for your opponent.
3. A disdain for common courtesy and civility, assuming that they ill-benefit the true warrior.
4. A wondrous facility for manipulating facts and engaging in revisionist history.
5. A hair-trigger willingness to fire off unnecessary motions and to use discovery for intimidation rather than fact-finding.
6. An urge to put the trial lawyer on center stage rather than the client or his cause.
To some, 'hardball' is an eight-day deposition. To others it is just plain cold-hearted nastiness. California Court of Appeal Justice Miriam Vogel, referring to lawyers who are always in court because someone is saying he or she did something inappropriate, discourteous or without thought, acknowledged that clients seek out such lawyers. Litigators with large well-respected Los Angeles firms agree that firms trade on their reputations as hardball litigators.
In short, lawyers play hardball because, contrary to what we read, they and their clients believe that hardball works. Again, ABA Journal article:
Much lawyer rudeness is calculated to wear down the other side. Lawyers routinely fail to return phone calls, make unreasonable demands for evidence, file mindless responses to legitimate requests and engage in personal attacks.
Clients also play a role in how their lawyers act. Influenced by the hyperbolic and hyper-aggressive advocacy depicted in film and on television, they often have unrealistic expectations of how their own lawyers should behave, particularly in such emotionally charged cases as divorce. 'I've had clients question my friendliness with another lawyer: How could you shake hands with him!?' says Jill Nicholson, staff director for the American Bar Association's Committee on Professionalism.
Why have things degenerated? David Margolick, writing in the Los Angeles Daily Journal:
The bar is bigger than it used to be and therefore more impersonal. Competition for clients and cases has grown. Life may even be emulating art, with a generation of younger lawyers influenced more by 'L.A. Law's' Arnie Becker than by any real-life law professors. Moreover, a generation of clients has come to believe 'polite' equals 'wimpy' or 'weak.'
Roger Cramton, former dean of the Cornell School of Law, summed up the gap between the ideal and reality in the following (excerpt from a 1985 paper he delivered in London at a plenary session of a meeting between the American Bar Association, the Senate of the Inns of Court and the bar, and the Law Society of England and Wales):
The disarray of the system of justice is all too apparent.
The problem is not one of a lack of competence on the part of its
lawyer participants, but of a lack of civilizing and moderating
qualities that include accommodation, trust, compassion, and similar
qualities. More competent technicians, lacking in these qualities
and adhering to the total commitment model of today's codes, will
multiply litigation, abuse every possible procedural device, and
employ any stratagem or tactics that will help win for a client.
The result is not justice but social disaster. Increasingly, many
lawyers have lost a sense of obligation to courts, opponents, and
the general public. . . . [T]he narrowness of the technical expert
is the dominant pattern, increasing in prevalence and in official
ideology.
If hardball works, shouldn't we use it?
With thousands, perhaps millions, of dollars of their money and possibly their financial survival at stake, clients want lawyers who win regardless of how they win. Milo Geyelin wrote in the Wall Street Journal:
There are two categories of clients, says Leslie Lawson, a former trial judge in Denver. Some think they've hired a great fighter because [the lawyer] fights everyone, she says. Others are appalled by the disrespect they see in courtrooms.
Winning is everything. Losing is nothing. No legal Oscars are awarded for a good performance in a losing effort. Every lawyer knows that if he or she refuses to do what the client demands, the client will likely find another lawyer who will.
In 1992, Law Professor Michael Josephson presented a program called 'Ethics Beyond the Rules' at the fall meeting of the ABA Litigation Section in Phoenix, Arizona. He complained that lawyers consider conduct that is not criminal to be proper. Winning, not ethical behavior, is the moral imperative. Losing is morally unacceptable. He said that one of the problems with lawyers is that zealous advocacy is more important than duty to the court and more important than trustworthiness.
I question to whom do we owe the duty - is the duty to the client or to the justice system? (According to Josephson, the current practice requires lawyers to go further with zealous advocacy than what the justice system requires.) I question how a lawyer can limit himself or herself by moral constraints when his/her opponent does not. Is that fair to the client? As the redcoats marched along, they were shot by rebels hiding in the bushes. We in the trenches have to think of our clients. Don't our clients have the right to expect that we will act like the rebels and do everything that we can within the limits of the rules to advocate their causes?
In order for lawyers to be able to justify their refusal to use hardball, they need to make sure that hardball does not work.
How do we do that?
First, make noise. If someone does something improper to you, publicize
it. 'Bad mouth' that lawyer to every lawyer and judge
who will listen. That will increase the impact of peer pressure.
The principal ally of Rambo is anonymity. In Los Angeles County, for example, there are more than 50,000 lawyers and 1,000 judicial officers. At the same time that the pressure on lawyers to act like junkyard dogs has increased, peer pressure - the traditional curb against such activity - has diminished because of the anonymity afforded by the increasing numbers of lawyers. Lawyers who are less likely to encounter the same lawyer or judge again, are less concerned about suffering a pay-back as a consequence of overly aggressive, questionable behavior. Increasingly, the benefit of acting in a Rambo manner in a particular case may be perceived to outweigh the possibility that the lawyer will damage himself/herself because of the effect that conduct will have on his/her reputation among peers and the judiciary. We see Rambo problems less in the smaller communities where everyone knows everyone else and the judges know the lawyers. To act as Rambo under those circumstances would be to commit professional suicide. In the whole state of Oregon there are only 13,000 lawyers licensed to practice. The time to address professionalism problems is now, before the Oregon bar gets so big that anonymity takes hold.
Second, don't wimp out. 'Professional' is not synonymous with 'wimp.' Withdraw all professional courtesies from the perpetrator and grant no extensions of time, but do not escalate your retaliation and do not engage in questionable practices yourself. Just maintain the pressure until the conduct stops. Also, do not charge your client for the extra time you spend in teaching Rambo a lesson. Just as the bar is implored to provide more pro bono services to the poor, I suggest that we also be prepared to provide pro bono services towards the elimination of Rambo in the profession.
However, if and when the perpetrator cries 'uncle,' stop. Let him or her know that all he or she has to do is agree to behave in an appropriate, professional way and the past will be forgotten. Make it clear that thereafter you will maintain a proper professional relationship with the offender, notwithstanding what happened before.
What else can the bar do?
Believe it or not, it has been pointed out to those of us who practiced
during the 'good old days' that younger lawyers have never
been taught that there is anything wrong with being overly aggressive.
To the contrary, aggressiveness is rewarded. They should be taught
differently. The MCLE Committee should establish a requirement for
one hour of civility/professionalism. Law schools should be encouraged
to provide instruction to law students in civility/professionalism.
Because increased anonymity is one of the primary reasons for the
decrease in civility and cooperation between lawyers, the bar should
create an ethics/civility dispute resolution committee to increase
peer pressure on offending lawyers. The bar should also adopt programs
making it easier for judges to resolve civility disputes between
lawyers.
What can the judiciary do?
Most judges decry incivility. Almost universally they argue that
incivility is counter-productive. Some take the position that incivility
is a lawyer problem that they simply do not have the time or resources
to get involved in. They are wrong. Judges should be encouraged
to circulate to all judges the names of lawyers who have been sanctioned
and ask the legal press publish the names of lawyers who are sanctioned.
Judges should be encouraged to allow sanctioned lawyers to attend
a civility/professionalism class in lieu of the payment of monetary
sanctions. Judges should not abdicate their responsibility to regulate
the behavior of lawyers who practice in their courts. They must
take the time to get to the bottom of lawyer civility, Rambo-like
behavior and hardball disputes - and reprimand and/or sanction the
offending attorney. If necessary to reprimand a lawyer, do it in
front of his or her client. Tell the client how much money Rambo
is costing. Judges should not tolerate abusive language in briefs
and other court documents.
What can law firms do?
Law firms should also act. They should create an appropriate firm
culture, a set of tacit understandings that law is practiced a certain
way by lawyers in the firm. Avoid granting a 'zone of anonymity'
to individual lawyers in which the firm will not second guess their
judgments. Avoid the suppression of information about questionable
conduct. Encourage associates to raise concerns about ethical practices
in the firm and encourage all lawyers in the firm, both partners
and associates, to pursue questions about the conduct of their peers.
After all, it is each lawyers's reputation that is damaged when
any lawyer in the firm engages in inappropriate conduct. Firms should
create a firm ethics committee or designate an 'ethics rabbi'
to give ethical and behavior advice to lawyers and conduct in-house
MCLE programs in ethics, professionalism, civility and avoidance
of perceived 'sharp practice.' Law firms must make sure
the lawyers in the firm understand what is unacceptable behavior.
It may be too late to reverse 'L.A. Law,' but it is not too late to create and protect lawyer professionalism in Oregon.
ABOUT THE AUTHOR
Peter M. Appleton is admitted to the bars of Oregon
and California. He is a former president of the Beverly Hills Bar
Association and a former chair of the California State Bar Conference
of Delegates. He practices as a neutral mediator, arbitrator and
as of counsel to individuals and corporations in litigation involving
complicated employmemnt, business, construction and real estate
disputes. This article was inspired in part by Alan G. Greer's article
'A Mission' in the December 2000 issue of the Oregon State
Bar Bulletin.
ENDNOTE
1. See, for example, Saylor, 'Rambo Litigation, Why Hardball
Tactics Don't Work,' ABA Journal, March 1988; Marcotte, 'Reigning
In Rambo,' ABA Journal, November 1989; Korlov, 'Courtly
Behavior,' California Lawyer, July 1990.
© 2002 Peter M. Appleton