Keep It Cool: The Benefits of Professionalism and Civility in Discovery Practice

By
Owen M. Praskievicz, Esq.
Schwartz Semerdjian Cauley & Moot, LLP
Published:  12.01.2015

Not long ago, on the eve of trial in a California courtroom, two opposing attorneys bickered about whether a factual issue in their case was really in dispute.  The judge presiding over the case, having heard the attorneys’ banter long enough, paused his ruling on a motion in limine to inform the attorneys about an important part of their jobs: professionalism.  

“Gentlemen,” the judge said.  “Let me make something clear.  This back and forth will not be tolerated. I’ve read the deposition transcripts in this case and the manner in which this case has been litigated is unacceptable from both sides.  I’d call it unprofessional.  And if this keeps up I will admonish the attorneys before the jury about their conduct.  If it continues after that, I will move for mistrial.”

The purpose of this article is to, in part, remind attorneys of the real effects of how a lack of professionalism in discovery can tangibly affect attorneys and their clients.  More importantly, however, this article seeks to draw attention to the benefits of conducting discovery with professionalism, and civility, which may include getting your client a favorable settlement.  

“The civility requirements in no way reduce the practice of law to an antiseptic exercise….[S]ome of the most passionate and effective advocates for their clients also hold their adversaries, the Court, and its judicial officers in the highest regard. Passion can easily coexist with respect, dignity, and civility.”  (People v. Whitus (2012) 209 Cal. App. 4th Supp. 1, 14 (citing In re Marriage of Davenport (2011) 194 Cal. App. 4th 1507, 1536-37).)

As most lawyers know, there are many rules and codes of professional conduct guiding attorneys in their practice.  Among these are the California State Bar’s Guidelines of Civility and Professionalism (“Guidelines”) adopted by the Board of Governors in 2007.  Section 9 of the Guidelines provides several best practices that may sometimes get overlooked, including:

As to depositions:

  • When another party notices a deposition for the near future, absent unusual circumstances, an attorney should not schedule another deposition in the same case for an earlier date without opposing counsel’s agreement.
  • An attorney should delay a scheduled deposition only when necessary to address scheduling problems and not in bad faith.
  • An attorney should treat other counsel and participants with courtesy and civility, and should not engage in conduct that would be inappropriate in the presence of a judicial officer.
  • An attorney should remember that vigorous advocacy can be consistent with professional courtesy, and that arguments or conflicts with other counsel should not be personal.
  • An attorney should refrain from self-serving speeches and speaking objections.

As to document demands:

  • Document requests should be used only to seek those documents that are reasonably needed to prosecute or defend an action.
  • An attorney should not make demands to harass or embarrass a party or witness or to impose an inordinate burden or expense in responding.
  • If an attorney inadvertently receives a privileged document, the attorney should promptly notify the producing party that the document has been received.
  • In responding to a document demand, an attorney should not intentionally misconstrue a request in such a way as to avoid disclosure or withhold a document on the grounds of privilege.
  • An attorney should not produce disorganized or unintelligible documents, or produce documents in a way that hides or obscures the existence of particular documents.
  • An attorney should not delay in producing a document in order to prevent opposing counsel from inspecting the document prior to or during a scheduled deposition or for some other tactical reason. 

As to interrogatories:

  • An attorney should narrowly tailor special interrogatories and not use them to harass or impose an undue burden or expense on an opposing party.
  • An attorney should not intentionally misconstrue or respond to interrogatories in a manner that is not truly responsive.
  • When an attorney lacks a good faith belief in the merit of an objection, the attorney should not object to an interrogatory. If an interrogatory is objectionable in part, an attorney should answer the unobjectionable part.

There are of course many ways to litigate a case and it is an unfortunate truth that some attorneys don’t heed the advice of the Guidelines.  Whether it is a large company dumping hundreds of thousands of documents on a smaller entity or individual with limited resources, or an attorney responding to narrowly tailored special interrogatories with copied and pasted, two paragraph objections that contain no responses, these practices are common.  

The downsides to these practices are numerous, even if the Guidelines are not mandatory.  For example, perhaps you were unreasonably harsh to a client and his or her attorney at a deposition, and then later in the case you inadvertently produce privileged communications.  Will that attorney that you went after be inclined to return the documents without putting up a fight?  Responding to unprofessional conduct in kind may be just as detrimental.  A recent article by Jeena Cho on Above the Law titled “Why You Shouldn’t Wrestle With Pigs” explains how the author made a case personal after receiving a nasty email from her opposing counsel.  After months of fighting the attorney on petty motion practice for the sake of winning, and after the opposing counsel was replaced, the author’s case settled.  Her conclusion was that, had she not let the case get personal, she may have been able to serve her client better by settling the case.  She offered this poignant quote by George Bernard Shaw: “I learned long ago, never to wrestle with a pig. You get dirty, and besides, the pig likes it.” 

Indeed, anecdotal evidence suggests that when attorneys are nice to one another, they can have much more frank and honest discussions about settling a case for the right value.  The alternative—making things personal—can only lead to attorneys wanting to “win” the case and beat the other side regardless of any settlement that might be on the table.  

Yet missing out on an early settlement is not even the worst possible outcome for clients, who can sometimes be liable for an attorneys unprofessionalism.  In the case of In re Marriage of Davenport (2011) 194 Cal. App. 4th 1507, 1524), the court identified a “young and inexperienced” lawyer who represented the wife in a marital dissolution action. The trial court ordered the wife to pay more than $400,000 in sanctions and attorney's fees to the husband due to her lawyer’s litigation misconduct. The court of appeal held that this award warranted by the lawyer’s “uncivil, rude, aggressive and unprofessional conduct” that resulted in “unnecessary delays and unnecessary attorney fees and costs.”  (Id. at 13.)  The lawyer’s conduct included filing excessive discovery motions, violating meet and confer obligations, and repeatedly directing “abusive, rude, hostile, and/or disrespectful” correspondence to opposing counsel.  (Id. at 14.)  After unsuccessfully persuading the court to reverse this monetary award, the lawyer at minimum sought to spare the wife personal liability for the award. The lawyer argued that the wife “should not have been punished for [his] communications, which remained within the bounds of free speech and zealous advocacy.”  (Id. at 1535 n. 17.)  However, the court rejected this argument and explained that Section 271 “‘explicitly makes parties liable for the obstreperous actions of their counsel…’ [Citations omitted.] .”  (Id.)

In this age of e-mails, of course, taking things personally and sending out snarky letters is common because it is so quick and easy to do.  “Meeting and conferring” sometimes equates to a one paragraph email before filing a motion.  Compounding matters is the infrequency of civil attorneys having to see each other in court where they are normally on their best behavior.  Contrast this with the relationships between prosecutors and public defenders who have to perpetually work with each other and, as a result, are more likely to remain cordial even if mutual disdain exists.

Return now to the recent judge overseeing the two lawyers arguing in motions in limine.  You see, this judge was an avid reader and had read several full deposition transcripts from the case, and was well aware of the attorneys’ history of fighting.  Presumably these attorneys, at the time of the depositions, were not behaving as though they were before a judicial officer as the Guidelines suggest.  Now, due to their conduct in discovery, they have both lost points with a judge on the eve of trial and are a slight misstep away from losing a jury.  Not a good place to be.

Want to change the way you practice, or want to reaffirm your commitment to professionalism?  Sign the Attorneys Pledge at the end of the State Bar Guidelines and promise to “abstain from rude, disruptive, disrespectful, and abusive behavior, and will act with dignity, decency, courtesy, and candor with opposing counsel, the courts and the public.”  It will help in more ways than one.