Civility in litigation is important. Just because it is an adversarial system does not mean people need to be jerks, not grant requested extensions for discovery, or engage in scorched earth tactics. I have found that often the most civil attorneys are the ones to be wary of because they know the law and will very effectively and capably represent their clients.
A few years ago, to highlight the importance of civility, California added civility to the attorney’s oath.
The Courts of Appeal in California have taken note to decry incivility:
Lasalle v. Vogel (2019) 36 Cal.App.5th 127 was a legal malpractice case where the defendant defaulted and the trial court refused to set aside the default. The Court of Appeal found that was error because the neglect was excusable in light of the attorney’s family emergency. Giving a one day deadline to respond was unreasonably short. This kind of behavior has, unfortunately, become a systemic failure. The term officer of the court “must not be allowed to lose its significance. [Citation.]”
Lossing v. Superior Court (1989) 207 Cal.App.3d 635, 641 states: “We conclude by reminding members of the Bar that their responsibilities as officers of the court include professional courtesy to the court and to opposing counsel. All too often today we see signs that the practice of law is becoming more like a business and less like a profession. We decry any such change, but the profession itself must chart its own course. The legal profession already suffered a loss of stature and of public respect. This is more easily understood when the public perspective of the profession is shaped by cases such as this where lawyers await the slightest provocation to turn upon each other. Lawyers and judges should work to improve and enhance the rule of law, not allow a return to the law of the jungle.”
In 1994, the Second District lambasted attorneys who were cluttering up the courts with what were essentially personal spats. Justice Gilbert wrote: “If this case is an example, the term ‘civil procedure’ is an oxymoron.” (Green v. GTE California, Inc. (1994) 29 Cal.App.4th 207, 208.
“The law should not create an incentive to take the scorched earth, feet-to-the-fire attitude that is all to common in litigation today.” (Pham v. Nguyen (1997) 54 Cal.App.4th 11, 17.)
In DeRose v. Heurlin (2002) 100 Cal.App.4th 158, the attorney was sanctioned $6,000 for filing a frivolous appeal and referred to the State Bar. That attorney, wrote opposing counsel: “I plan on disseminating your little letter to as many referring counsel as possible, you diminutive shit” and closed his letter with “See you in Court.”
The First District Court of Appeal reminded attorneys of civility by stating: “we close this discussion with a reminder to counsel — all counsel, regardless of practice, regardless of age — that zealous advocacy does not equate with ‘attack dog’ or ‘scorched earth’; nor does it mean lack of civility. [Citations.] Zeal and vigor in the representation of clients are commendable. So are civility, courtesy, and cooperation. They are not mutually exclusive.” (In re Marriage of Davenport (2011) 194 Cal.App.4th 1507.)
The Fourth District Court of Appeal also addressed the issue: “Our profession is rife with cynicism, awash in incivility. Lawyers and judges of our generation spend a great deal of time lamenting the loss of a golden age when lawyers treated each other with respect and courtesy. It’s time to stop talking about the problem and act on it. For decades, our profession has given lip service to civility. All we have gotten from it is tired lips. We have reluctantly concluded lips cannot do the job; teeth are required. In this case, those teeth will take the form of sanctions.” (Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 293.)
“The absence of civility displayed by some practitioners heightens stress and debases the legal profession. Those attorneys who allow their personal animosity for an opposing counsel or an opposing party to infect a case damage their reputations and blemish the dignity of the profession they have taken an oath to uphold.” (Crawford v. JPMorgan Chase Bank, N.A. (2015) 242 Cal.App.4th 1265, 1266-1267.)