In response to Mark Herrmann’s contribution about the “unbearable darkness of partisanship” and his plaintive question “Am I the only one who can no longer take it” the answer is no, Mark, you are not. I am right there with you. Mark wonders why we are where we are. Although Mark’s comments focus on the political, the political is personal. See Appendix A, the 2020 presidential election.
Partiality is simply no longer in politics; it seeps into every corner of society, not least into legal practice. Nobody listens to different points of view anymore. People cover their ears, say “nah, nah, nah” (remember that stunt from childhood?) And disappear, regardless of whether their position is unfounded or not. It’s not fun anymore, and yes, years ago I thought legal practice was fun at least at times.
I am continuing my address on the subject of partiality, which I prefer to call politeness because you cannot agree without being uncomfortable (who said that?). I can only guess that appellate courts across the country are really pissed off at the lack of courtesy (testify to the number of bank blow stories in ATL), but I don’t know if it is right to say “pissed off” on one opinion. It is “flushed and repeated” all the time.
The case arose out of a dispute over construction work on the plaintiff’s house. (Does this sound familiar to you?) Part of the argument revolved around the amount of legal fees. (Does this sound familiar to you?) The plaintiff’s attorney and his wife were represented by a lawyer, but the plaintiff’s attorney spent a lot of time on what the court deemed “beyond dispute” for the dollars and facts in question . Just as a surgeon should never operate on a family member, the appeals court found that “the attorney’s involvement has undermined objectivity as to the appropriate scope of litigation”. In earnest.
The appeals court found that the plaintiff was unable to call the opposing attorney a liar. Never a pleasant word. Courtesy, the court said, is one aspect of skill that is used to consider whether to adjust a guiding star. “Excellent lawyers deserve higher fees and excellent lawyers are civil law. Solid logic and bitter experience support these points. “
When the lawyers are civil, litigation can be resolved more efficiently and quickly, the court said, preaching to the choir. Attribution and other means of adding sand to the gears of litigation are only there to increase costs and, shall I say, partisanship? And in a final blow to the bank, the court found that “there is a salutary incentive for attorneys in fee shifting cases to know that their own low blows can come back to pocket them.” Message received.
What’s the point of being offensive? The attorney’s personal involvement may have been the reason the litigation was so high. In any case, there is a lesson here for all litigation attorneys. Bank claps are also becoming more common. Every normal or even irregular ATL reader knows this.
Avid advocacy is what we lawyers are supposed to do. The line between that and that of civilianity should never be blurred. Remember, the same goes for the legal profession, just as our people told us about the Golden Rule. I would certainly never want to be called a liar in court documents, and I’m sure no one else would either. Once such a document has been submitted, it is publicly available and can be viewed by the public. Yes, I know about the trial privilege, but the existence of the privilege does not lessen the sting of such words. Whoever said that “words can never hurt you” is full of it. As cowboys would say in the old movies, “They fight with words.” Indeed.
However, I do hope a little for the future of our profession. Last weekend, I was a volunteer judge in an intercollegiate mock trial competition sponsored by the American Mock Trial Association. Who knew about this organization? I didn’t know anything until I volunteered and I’m so glad I did. These competitions show the best students in mock experiments. They are the plaintiffs, defense counsel, and witnesses who change roles in the context of the case assigned to them.
It was a great experience. The students did great jobs in every role they played. They knew how to present a case both as boss and on the cross, how to object, what objections to raise, and the witnesses played their various roles to the full. Even though it was a very long Zoom session (more than three hours) on a Sunday afternoon, it was well worth it.
What impressed me was the courtesy and courtesy that the lawyers showed to each other and also to the witnesses. No attitude, just questions back and forth. The various lawyers in their various roles were firm but never uncomfortable. The jury would probably have loved most, if not all, of the lawyers and witnesses. And that was a point the volunteer presiding judge, a trial attorney in the US Attorney General, made and emphasized the importance of courtesy. It is a lesson that cannot be taught often enough.
While I would suspect that some of the students will choose other, more affordable careers, I hope others will go to law school and join us. Yes, I know the profession is crowded, but there is always room for excellence and when we dinosaurs rumble off the stage it would be nice to know that those who choose to take our seats are doing so in spectacular fashion Way can do.
Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers working as a lawyer in a kinder time. She had a varied legal career, including as a deputy district attorney, as a solo practice and as a senior in-house gigs. She now teaches all day what gives her the opportunity to see dinosaurs, millennials, and the people in between – it’s not always bourgeois. You can reach them by email at [email protected].