Follow-up of the price of requiring civility in litigation

525 points

Mine Previous column The comment on the judge’s decision to lower attorneys’ fees based in part on urbanization (or lack thereof) sparked some interesting discussions. Some believe that judges should play a more active role in ensuring that lawyers behave in a civil manner. Others believe that attorneys must be aggressive at times if it is in their client’s best interests.
Almost everyone believes that attorneys should act in a civil manner at all times. But the problem is, they just can’t do it all the time. This is because civility tends to benefit the winners.
I’m told rudeness is a symptom sometimes. An opposing attorney can be a close friend but their clients expect their attorney to fight back, especially if they are paid a lot. So, even if an opposing attorney wanted to solve the problem efficiently, they would not be able to if their clients did not allow it.
Then how should a lawyer act if he has good reason to believe that the opposing attorney is lying? Scott Greenfield suggests that even using the civic cute expression to lie can still offend you.

But what if the lawyer opposes he is Lie or meet him? Do you not call him a liar because he is a savage? The court is right that it devolves upon “destructive reciprocity” and absorbs the time that would have been devoted to “socially productive uses,” whatever that means, asking the judge for time to “oversee hostilities.” But what do you do if the attorney lied, in a very civil manner? Of course, you can respond with similar kindness that an attorney’s representation of the facts smells badly and tends to attract a large number of flies, but even so, feelings can be bruised.

As I mentioned earlier, if courtesy is a factor in adjudicating a case, when does an attorney cross the line to act in an uncivil manner? We can agree that physical disagreement fulfills this criterion. So threatening emails are sent to an opposing attorney full of profanity. What if the opposing attorney or their clients do not provide the documents when the attorney requests them? Is this uncivilized behavior? If the criterion is determined by the personal sensitivities of the abusive judge or attorney, problems will arise.

Let’s look at this from another perspective. Suppose a customer faces eviction because he did not pay the rent due to COVID-19. One day, the evacuation procedures will begin. The customer has no money because he was laid off and spent all on food and medicine. Assuming the client has few options, is his attorney supposed to tell his client, “Sorry, but I have to be civil to the opponent’s attorney because he’s right?”

The result of imposing the civilization rules may impede the attorney’s representation of a client facing debt collection, eviction, or deportation. Would lawyers tend to represent these people if ardently pleading their case could lead to penalties because someone believes they are not civilians? And do I need to mention that most of the people who face these problems are of color?

It may be helpful for judges and those who firmly believe in civility at all costs to advise attorneys on what to do if civility does not help indigent clients reclaim their home or remain in the United States.

In short, there probably should be a distinction between rudeness that is specifically done to harassment and delay rather than pleading enthusiastically in their clients’ case. I understand that the line is sometimes blurred but I am sure the judges understand that not every dispute can be resolved peacefully.

Stephen Chung is a tax attorney in Los Angeles, California. It helps people in basic tax planning and tax dispute resolution. He’s also sympathetic to people who have big student loans. He can be reached via email at Or you can contact him on Twitter (Embed a Tweet) And communicate with him Linkedin.

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