Summary Judgment Motions - To File or Not to File? The Honorable Danielle J. Hunsaker, Washington County Circuit Court, Jason Kafoury, Kafoury & McDougal, and Joel Mullin, Stoel Rives, LLP (April 2019)
Judicial Challenges The Honorable Janet Stauffer, 7th Judicial Circuit (August/September 2017)
Use of Fictitious Names for Parties in Civil Litigation in Oregon The Honorable James Hargreaves (Senior Judge, retired), Lane County Circuit Court (June/July 2017)
The Judge's Pledge The Honorable Susan Tripp, Marion County Circuit Court (May/June 2017)
Organizing for the Courtroom The Honorable Daniel R. Murphy, Linn County Circuit Court (March/April 2017)
A Two Year Journey with Odyssey in Juvenile Court The Honorable Lindsay Partridge, Marion County Circuit Court (January/February 2017)
Lane County Streamlined Jury Trial Project The Honorable Curtis Conover, Lane County Circuit Court (November/December 2016)
20 Ways to Further Justice The Honorable Ilisa Rooke-Ley, Lane County Circuit Court (October/November 2016)
Managing Multi-Party/Complex Litigation without Driving Your Judge Crazy (and maybe even making it easier for everyone) The Honorable Henry Kantor, Multnomah County Circuit Court (September 2016)
Managing Multi-Party/Complex Litigation without Driving the Judge's Staff Crazy The Honorable Eve L. Miller, Clackamas County Circuit Court (August 2016)
Do's and Don'ts in the Courtroom The Honorable Lisa Greif, Jackson County Circuit Court (June/July 2016)
Preparation for a Status, Case Management, or Pretrial conference - or how to get more out of a non-evidentiary proceeding in criminal and family court cases The Honorable Kirsten E. Thompson, Washington County Circuit Court (April/May 2016)
Postponements The Honorable Richard Barron, Presiding Judge, Coos/Curry County Circuit Court (March 2016)
Consider Trying More Cases The Honorable Suzanne Chanti, Lane County Circuit Court Judge (February 2016)
Professionalism - It Counts Both In and Out of the Courtroom The Honorable Brian Dretke, Union County Circuit Court Judge (January 2016)
Changes to Sex Changes The Honorable Beth A. Allen, Multnomah County Circuit Court Judge (December 2015)
Top 25 Tips from a Senior Judge The Honorable Michael C. Sullivan, Senior Judge (retired), Deschutes County (November 2015)
How to Succeed at Power Point In the Courtroom The Honorable Michael McShane, US District Court (October 2015)
Effective Use of Evidence At Jury Trial The Honorable Matthew Donohue, Benton County Circuit Court (September 2015)
Making a Record for Appeal, The Honorable Charles M. Zennaché, Lane County Circuit Court (August 2015)
Access to Civil Justice in Oregon's State Courts, The Honorable David Brewer, Associate Justice, Oregon Supreme Court (July 2016)
What Jurors Want: A Look Into the Minds of Jurors, The Honorable John V. Acosta, United States Magistrate Judge (June 2015)
Handling the "Half-se" Hearing, The Honorable Mustafa Kasubhai, Lane County Circuit Court (May 2015)
Effective Voir Dire, Judge Thomas Hart, Marion County Circuit Court (April 2015)
The New Judge on the Block, Judge Lung S. Hung, Malheur County Circuit Court (March 2015)
The Gift of Finality: One PJ's Perspective, Judge Karsten H. Rasmussen, Lane County Circuit Court (February 2015)
ORCP 68 Attorney Fees - when, why and how to seek them, Judge Deanne L. Darling, Clackamas Juvenile Court (January 2015)
Difficult questions must be answered before they are asked, Judge Edward J. Jones, Multnomah County Circuit Court (December 2014)
Judicially Hosted Settlement Conferences, Judge Jamese L. Rhoades and Sr. Judge Don Dickey, Marion County Circuit Court (November 2014)
Working together to make discovery more efficient, The Honorable Youlee Yim You, Multnomah County Circuit Court (October 2014)
Court Trials - A Jury of One, The Honorable Katherine E. Tennyson, Multnomah County Circuit Court (September 2014)
Making the Most of Short Evidentiary Hearings, The Honorable Daniel R. Murphy, Linn County Circuit Court (August 2014)
Vouching, The Honorable Jay McAlpin, Lane County Circuit Court (July 2014)
Appropriate Jury Instructions Can Help Litigators Win Trials, The Honorable Paula Brownhill, Clatsop County Circuit Court (June 2014)
Evidentiary Hearings and Motion Practice in the era of Oregon e-court, The Honorable Benjamin Bloom, Jackson County Circuit Court (May 2014)
Motions in Limine - Tips for "Newer" Litigators, The Honorable Jodie Mooney, Lane County Circuit Court (April 2014)
The Honorable Brian Dretke
Union County Circuit Court Judge
Professionalism - It Counts Both In and Out of the Courtroom
It has been my practice to visit with the jury after every trial. In addition to asking about their perception of the trial process and ways it can be improved, I always ask for their candid assessment of the lawyers' performance. After a recent trial one juror said, "Boy, those lawyers sure don't like each other, do they?" The other eleven jurors nodded in agreement and in the discussion that followed words like "nasty", "sarcastic", and "too aggressive" were mentioned. They unanimously found it an unpleasant distraction from their role as fact finders. The discussion ended with another juror shrugging her shoulders and saying, "I guess that's just the way lawyers are." I wanted to disagree but unfortunately I have witnessed similar behavior in both bench and jury trials. The purpose of this article is to raise awareness of the importance of civility and professionalism in the practice of law, and to suggest methods of addressing and curbing incivility among lawyers.
The adversarial nature of the legal profession does not have to dictate the manner in which legal professionals interact with one another. In a speech to the American Bar Association in 1993, Justice Sandra Day O'Connor addressed incivility,
"[T]he justice system cannot function effectively when the professionals charged with administering it cannot even be polite to one another. Stress and frustration drive down productivity and make the process even more time consuming and expensive. Many of the best people get driven away from the field. The profession and the system itself lose esteem in the public's eyes.
... In my view, incivility disserves the client because it wastes time and energy - time that is billed to the client at hundreds of dollars an hour, and energy that is better spent working on the case than working over the opponent."
This is just as true today as it was two decades ago. Attorneys often seem to equate boorish behavior and obstructionist conduct with zealous advocacy. These are easily distinguished. Zealous advocacy benefits the client; poor behavior and obstruction do nothing to advance the client's cause, and in some cases actually undermine the client's credibility because the things lawyers say and do reflect on their clients.
Of course, professionalism is far more than simply being polite. It is recognizing that your job is not to "win," but to help administer justice. It is being realistic about the strengths and weaknesses of your case and being willing to adjust your position as justice requires. It is advocating creatively, but reasonably. It is returning phone calls and emails, responding to discovery requests timely and completely, and being respectful of the time and resources of opposing counsel. Professionalism is refraining from sarcasm, ridicule and obstructive tactics such as unwarranted instructions not to answer questions during depositions. During trial, it is avoiding derogatory references to opposing counsel in front of the judge and jury, and refraining from inappropriate body language in an effort to persuade the jury (loud sighs, eye-rolling, tossing a pen, or shaking your head in disagreement). In short, it is treating everyone - even those you disagree with - with respect.
Civility and professionalism can alter the course of litigation from a battle in front of a jury to an agreeable resolution. Why? Because when a case is approached as two professionals trying to work out a solution to a problem rather than two adversaries itching for a fight, clients will often follow their example and become more amenable to settlement. If the case does go to trial, the spirit of cooperation leading up to trial invariably results in a more seamless presentation of the parties' respective cases, for example, stipulated exhibits, joint jury instructions, and far fewer objections.
So, what should you do when confronted with opposing counsel who resorts to unprofessional litigation tactics? The first thing is to stand up to it. Make a record of the offending behavior. If it occurs during a deposition, admonish counsel that you will not tolerate it further and will call for court intervention if it persists. Often that will be sufficient, but if it is not, follow through. I am by no means suggesting that every quibble justifies calling the judge, but if the behavior is significant enough to disrupt the deposition and interfere with the ability to obtain relevant discovery and testimony, a call to the court is justified. If the behavior occurs during trial, wait for a recess and ask that the record reflect the offending conduct. Again, that will often be sufficient, but if it is not, seek remedies such as an enhanced prevailing party fee and/or sanctions. Finally, if the behavior is serious and recurring, consider reporting the offending counsel to the bar disciplinary counsel. A lawyer who continuously engages in such behavior will not be deterred unless there are consequences to his or her actions.
In Revson v. Cinque & Cinque, 70 F. Supp. 2d. 415 (S.D.N.Y. 1999), a case that examined the question of when a lawyer crosses the line from zealously representing a client to abusing the legal process, the court quoted from an OSB Bulletin article written by then Chief Justice Wally P. Carson, Jr. and bar leader and professionalism advocate Barrie J. Herbold entitled "Why 'Kill All the Lawyers'?". It is a fitting conclusion to this article.
"As lawyers and judges, we live out who we are by our actions. Professionalism is not something to don at the office or take off with our suits and our robes; our behavior continuously demonstrates who we are. We can improve our own lives and spirits, those of our clients, opposing counsel and parties and the community as a whole, if we simply remember that our part in the system gives us tremendous power, to make life better for every citizen .... If every lawyer and judge ... would analyze every action she or he takes in light of the goal of ensuring that the system works fairly and efficiently for everyone, questions about professionalism would simply disappear - and tremendous good would result for our community. 59 Or. St. B. Bull, 9, 12 (Jan. 1999).