| Oregon State Bar Bulletin — AUGUST/SEPTEMBER 2007 |
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Professionalism for litigation and courtroom practice
By Hon. Daniel L. Harris and John V. Acosta
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Ensuring the quality of our professional lives and improving the public’s perception of our profession begins with our conduct toward each other. It also rests on our conduct in the courtroom, before judges, opposing counsel, juries and members of the public. Lawyers are educated and trained to exercise a high degree of skill and competence in representing individuals and organizations in the legal system. They should complement those attributes by exercising the highest standard of conduct when dealing with judges, clients and one another, whether verbally or in writing. Professionalism differs from ethics in that ethics rules are mandated rules of conduct, while professionalism is a standard to which lawyers should aspire. The following suggestions for observing professionalism stem from years of litigation and courtroom experience — and some hard lessons learned during that time. This list was compiled from comments received from judges, attorneys and clients who were asked for suggestions on what can be done to improve professionalism. Integrating these suggestions into daily practice not only will improve the quality of your professional life, but will also make you a more effective advocate for your client.
1.
Promote the efficient resolution of disputes.
In most cases, an attorney should advise the client of the availability
of mediation, arbitration and other appropriate methods for resolving
disputes outside of the courtroom. A professional lawyer should always
consider, and advise the client of, the most efficient way of resolving
the dispute. This includes consideration of the effect litigation and particularly
the trial will have on your client and the benefits to your client that
flow from resolving a dispute sooner rather than later. Most clients want
a dispute resolved in a timely manner with minimal cost; staying out of
court usually accomplishes that goal. Attorneys should do everything they
can to resolve pretrial disputes without involving the court. This is especially
true with disputes over discovery issues — many motions to compel discovery can be resolved without using
the resources of the justice system.
2. Be a counselor to your client, not
a mere puppet.
Clients don’t always know what is and isn’t right. They aren’t
familiar with the ethics rules that bind lawyers and the unwritten local
conventions lawyers observe when working on cases with one another. Some
clients want you to dislike the opposing party as much as they do and, thus,
they expect you to make the other side’s life miserable. Some clients
also might not appreciate that you and your opponent are professional colleagues
and very likely will have cases against one another in the years to come,
and they might not take into account that your relationship with a judge
is important to your ability to represent them in the current case and other
clients in future cases.Adopting a "scorched-earth" or "take-no-prisoners" approach
to litigation will not serve your client’s interests and ultimately
will work to your client’s disadvantage in resolving the dispute. A
lawyer should defuse emotions that might interfere with the effective handling
of litigation and which could complicate or preclude resolution of a dispute
in a way that best serves the client’s interests. If a client requests
or insists upon a course of action that is contrary to local custom or would
be counterproductive to the client’s interests, tell the client so
and explain why. Some clients might take longer to understand this notion
than will others, but you can’t represent your client’s interests
by taking an action you know will ultimately harm those interests.
3. Keep
your word.
Lawyers spend a lot of time putting things in writing, but in the daily
practice of litigation a lot of routine business gets done verbally.
Your ability to practice effectively will depend to a large degree
on whether opposing counsel and co-counsel trust you. If your colleagues
know they can trust you to do what you say, your professional life
will be a lot easier. So, do what you say you will, and if you can’t do or agree to something,
then say you can’t do or agree to it. You’ll find that a little
candor goes a long way.
4. Don’t fudge.
Credibility is everything. Some lawyers gain a reputation for being
fudgers. They overstate the facts in a case, misrepresent the holding
in a case, or
misstate the position of the opposing party. Some attorneys believe
they are simply zealously representing their clients when they stretch
or shade the truth. They are actually doing a disservice to their clients.
Once this reputation sets in, it is difficult for a lawyer to regain
credibility, and it ultimately diminishes the lawyer’s ability to be effective as
an advocate. Credibility and reputation are earned from hard work, ethical
practice and a believable and accurate representation. Credibility and reputation
will get you a lot further during litigation and especially in a courtroom
than any other aspect of your practice.
5. Disagree agreeably.
Lawyers don’t always agree, especially when they are on opposite sides
of a case. But a disagreement between lawyers shouldn’t devolve into
a declaration of war. Lawyers should keep in mind that disagreements are
inherent in litigation and that each side has a job to do for his or her
client. In doing that job it is inevitable that lawyers will disagree on
the facts, legal or procedural issues, the credibility of a party or witness,
or the value of a case. When the disagreement can’t be resolved, accept
that the disagreement is a legitimate difference of opinion between two professionals
and don’t take it as a personal affront.
6. Extend professional courtesies.
"Live by the sword, die by the sword." It’s a maxim that applies
to litigation and to litigators. The professional lawyer consents to reasonable
requests for extensions of time, resets, rescheduling and other routine matters.
If such a request won’t prejudice your client, there’s usually
no legitimate reason not to agree to an opponent’s request. If you refuse
a reasonable request and your opponent takes the matter to the judge and you
can’t demonstrate prejudice to your client or unreasonableness by your
opponent, think about how you’ll look to the judge. The time will come
when you’ll need an extension, reset or rescheduling of a deadline or
event. When that time comes, don’t expect your opponent to be reasonable
toward you if you’ve refused similar requests from your opponent.
7. Be
prepared.
The process of litigating a case and preparing it for trial can be
more important than the trial itself. Being prepared is to know the
rules of civil procedure and courtroom protocol and to follow those
rules. This includes such things as: conducting efficient and focused
depositions; knowing cases cited in the briefs to address questions at oral
argument; marking your exhibits and preparing an exhibit list before trial;
exchanging your exhibits with the opposing counsel before trial; knowing
what is and is not appropriate to mention in your opening statement; knowing
how to offer an exhibit into evidence; carefully selecting and preparing
jury instructions and understanding the hearsay rule. Professionalism begins
with conducting all phases of litigation well and being prepared to enter
the courtroom to conduct your business there in a competent manner.
8. Be
on time!
Some lawyers have a hard time showing up at a deposition, a hearing
or even the trial at the time it is scheduled to be conducted. Most
lawyers work at showing up on time and if they can’t be there on time, they
make an effort to notify their opponent or the court of the reason for their
tardiness. But some lawyers have no problem with regularly being 10 or more
minutes late for a scheduled appearance and never understand that showing
up late for a scheduled proceeding or court appearance exhibits an attitude
of disrespect for those who are being made to wait.
9. Be courteous and respectful.
A little courtesy and respect go a long way. You can’t belittle or
mistreat courthouse staff or opposing counsel without affecting your standing
with the judge or the trier of fact. Whether dealing with opposing counsel,
a court reporter, courtroom staff or your own co-workers, showing respect
toward everyone is often the most effective way to establish the basis for
relationships that will serve you and your client well later on. Treating
an opponent with respect and professional courtesy typically creates a cordial
(if not friendly) dynamic that gives you credibility and influence with your
opponent. Ultimately, these characteristics will translate into better results
for your client, regardless of whether the case settles or goes to trial.
10.
Pay attention to your appearance.
Most lawyers are appropriately dressed and groomed when they participate
in a case proceeding and come into the courtroom. Some forget where
they are. Professional lawyers present themselves in such a way as
to not detract from the presentation of their case.
11. Maintain an
appropriate demeanor.
It is unprofessional to overreact in the courtroom to something you
don’t agree with — especially to a ruling by the judge on an
objection. Some lawyers have the unfortunate habit of overreacting to testimony
or to a ruling they don’t agree with in the courtroom. This tends to
undermine a lawyer’s effectiveness and credibility in the courtroom.
The advice of one judge is to "not take a judge’s ruling or decision
personally."
12. Object to the evidence in an appropriate manner.
Trial lawyers should be frugal with their objections. If it is not
hurting your case, don’t object. Seasoned trial lawyers object infrequently;
rookies jump up and down constantly. It is unprofessional and ineffective
to be registering constant objections. When an attorney makes an objection
to the evidence, the attorney should stand and say "objection," and
in a summary fashion state the basis for the objection, such as "relevance" or "hearsay." If
the court wants the other attorney to respond, the court should so indicate.
Lawyers can become sloppy and unprofessional with the objection process.
Most judges do not appreciate "speaking objections," where the
attorney ends up giving information to the jury that can’t be obtained
from a witness.
13. Write as if your reputation depended on it.
During a typical case your written communications will comprise the
majority of your contact with the judge, your opponent and your client.
In many cases, your written word is often the first contact you will
have with each of them. Each time you compose a pleading, brief, letter
or e-mail, you shape your professional reputation. With that in mind,
don’t write
anything you wouldn’t want to be known for among your peers or you
wouldn’t want read to a jury. Your written work product should be free
of hyperbole, sarcasm, exaggeration, threats and personal attacks. Don’t
overstate the facts of the case, and be careful to accurately present relevant
legal authority. Proofread your written work for grammar, spelling and typographical
errors. Remember that each time you write you have the unique opportunity
to build your professional reputation among judges, colleagues and clients,
so make sure you’re creating a reputation you can live with.
14. Avoid
ex parte contacts with the court.
Any attempt to gain an advantage over your opponent through an ex parte
contact with the court, or the court staff, will poison your reputation
with a judge. This includes everything from direct contact with a judge
on the merits of the case to supplying information to the court without
adequate notice to opposing counsel. For example, it is not appropriate
to place a motion or memorandum into the hands of the judge while mailing
a copy of the document to opposing counsel, which may arrive at the
lawyer’s
office two or more days later.
15. Don’t take unfair advantage of opponents.
While it’s part of the litigation process to capitalize on your opponent’s
mistakes or inexperience, it’s not necessary to deliberately embarrass,
humiliate, intimidate or bully an inexperienced or less skilled opponent.
Experienced lawyers should model appropriate professional behavior to less
experienced lawyers. If we model rude and boorish behavior to less experienced
lawyers, we will create the kind of lawyers that make practice more stressful
and less enjoyable. Engaging in such inappropriate conduct might cause your
opponent to work harder than he or she otherwise would, to the ultimate disadvantage
of your client — and make you look foolish in the process.
16. Don’t
do something just because you can.
Justice Potter Stewart once said, "There is a big difference between
what you have a right to do and what is right to do." No ethics rule
prohibits lawyers from yelling at their opponents or engaging in intimidating
behavior, and the ethics rules don’t require that lawyers be cordial
to one another. On the other hand, think about how you’d like to spend
the next 40 years as a practicing lawyer. Do you want to build hostile and
acrimonious relationships with lawyers against whom you might be practicing
for decades? Probably not. It usually takes very little effort to be cordial
to your opponent, and that small investment of goodwill will pay large dividends
to you in the years to come.
17. Don’t behave differently than you would
in front of a judge.
The great bulk of litigation occurs outside the presence of a judge.
The rules of professionalism aren’t different just because the judge
isn’t present to watch your every move. If you wouldn’t engage
in the behavior in front of a judge, then don’t do so when the judge
isn’t around.
18. Don’t let your opponent control your behavior.
Some lawyers behave unreasonably or harshly, or are consistently difficult
precisely because they want you to lose your objectivity and shift
your focus to "getting back" at them. They know that if they can get you to
focus on them, then you’ll spend less time working up your case. Once
they get you thinking about how to get back at them and not about how to
build your client’s case, they’ve won. So keep your balance.
Your client deserves an objective, diligent advocate — not a hothead
bent on vengeance against another lawyer.
19. Don’t take yourself too
seriously.
A wise practitioner once said, "Take what you do seriously, but not
yourself." Keep in mind that the case is not about you. Many lawyers
over-estimate the impact they have in the cases they try in the courtroom.
The truth is that the trier of fact focuses on the message (i.e., the facts)
and not the messenger unless, through inappropriate conduct, the messenger
gives the trier of fact reason to focus on him or her.
ABOUT THE AUTHOR
The Hon. Daniel L. Harris is a circuit court judge in Jackson County. John V. Acosta is senior deputy general counsel for TriMet. Both are members of the Oregon Bench and Bar Commission on Professionalism.
© 2007 Hon. Daniel L. Harris and John V. Acosta