Not long ago, one of the lawyers involved in the transgender litigation twitted that he could not be civil to his opposing counsel. The reason was clear: his adversary denied his existence. The lawyer was transgender and the issue was about the rights of transgender people, and the opposing counsel argued against the position taken by the transgender lawyer. This was was white supremacy. This was transphobia. This was evil, and he could not, would not, be civil to someone who was evil.
Ari Cohen, formerly of FIRE, twitted a thread of advice to baby lawyers about civility.
Baby lawyers: if your mentor is a jackass to opposing counsel (or OC’s staff) for no good reason, find a new mentor yesterday.
I’ve had many strenuous disagreements with OC, and have snarked about a claim or two. But I’ve never found it hard to treat OC like a human being.
You’re not generally pitted in a personal battle against opposing counsel. You’re each doing a job on behalf of your clients. Sometimes that means telling OC that their claim is shit and you’re not backing down. That’s different than being a shithead to them on a personal level.
There was a time when we accepted the idea that you had a job to do and your adversary had a job to do, and it wasn’t a personal death match between lawyers. There have always been overly aggressive lawyers who lack the capacity to turn it down a few notches and instead behave offensively, or like a “jackass” as Ari puts it, for no good reason. They do it because they are a jackass, and it’s not a good reason.
But that doesn’t mean your option is to either be, or not be, a jerk, whatever that means.
There are good reasons to fight with your adversary. Sometimes you can gain an advantage for your client by rattling a lawyer. Other times, being overly civil comes at a cost to your client, which makes the lawyer come off like a nice guy while the client pays the price of your civility. To say one values civility over all is to ignore that we serve our clients, not our own sense of propriety or only as far as our personal comfort level allows.
Ari’s advice is, to seasoned eyes, entirely correct and, frankly, pedestrian. But that’s because we never understood our role as lawyers to be soldiers for the cause, and as should any good soldier, be prepared to die for the cause if necessary. Sure, General Patton, best to make the other poor schmuck die for his country, but that doesn’t always work out.
As we’ve seen young lawyers come into the profession not so much to be lawyers, but to be lawyers for a cause, does that justify the death of civility? If you adopt the vapid mantra that your opposing counsel is trying to erase your existence because they’re arguing against something that affects you personally, or something you really, really, believe in, does that make them evil and deserving of nothing but raw hatred?
Can a PD no longer have a beer with a prosecutor? Can a “public interest lawyer” share a kind word with a lawyer for a corporation? Can a lawyers for “survivors” agree to an adjournment requested by a lawyer for an accused rapist? Are the normal “courtesies” we provide our adversaries in court, provided they don’t compromise a client’s interest, now acquiescence to existential threats to the cause? Are we still advocates for our clients in the well, but just lawyers fulfilling the function demanded of us in an adversary system after the case is adjourned?
The answer might seem too obvious for words to some of us, but there is a strong trend among baby lawyers to view their adversaries as evil being bent on destroying lives, whether by denying them the rights we so fervently believe they deserve or putting them in prison for life plus cancer. Do we hate them because to do otherwise is to be complicit in their evil?
A lot of baby lawyers believe so, and they aren’t inclined to take the advice of seasoned lawyers who, to their fiery eyes, just don’t get it.
*Tuesday Talk rules apply.
Way back in the day, I was taught to observe the “first bite rule” and play nice with opposing counsel until they took advantage of my civility and willingness to cooperate. I still try to follow that rule and to remember one of The Four Agreements – Don’t take anything personally.
The rationale between acting in this fashion was that civility between attorneys helped resolve matters more efficiently and made it more likely to come to adjust resolution. And to be frank, I’ve got enough crap going on in my life without getting into a pissing contest with every attorney I face off against. Unfortunately, that may be a disappearing viewpoint.
SHG,
Damn you, you have done it again. Conflicted me.
A long time ago when I had testerone, I took no shit from opposing counsel. But I tried hard not to give it either.
It occurred to me then, as it does now, that the real test of a lawyer in the context of your post was one who, without laying down, was civil all (or nearly all) of the time even when opposing counsel was the devil incarnate.
I never harmed a client by doing so, but I felt like decent person after all was said and done. Set everything else aside, and your baby lawyers might ponder the question of the value of their intrinsic self worth.
On the other hand, this may be only be the babbling of partially toothless old man. So, fuck the bastards ’cause you can!
Or maybe some tales of wives are true. What goes around come around.
I’m confused. All the best.
RGK
As they say, if I can’t dazzle them with brilliance, then I baffle them with bullshit.
War story. Sorry, that should be Peace Story. One I’ve told young lawyers often over the years.
First case I argued in federal court was in the Fifth Circuit in New Orleans. Case was out of Lubbock, Tx. My guy was one of three co-defendant mules in a drug deal gone bad. Two of us were appointed and had flown in to NO on your tax dollars and, like the AUSA, had to fly out later that afternoon. The third lawyer was retained, flew in with his wife, and the two of them were taking a week or so’s vacation. Total argument time was 30 minutes – 15 for the three of us, 15 for the AUSA. We were done before 10 AM and the retained guy went off with his wife.
And, in the true spirit of hatred, we two appointed counsel and the AUSA went together to the Cafe du Monde for coffee and beignet before returning to our respective hotels to pack up, check out, and head for the airport.
As an aside, I try (or did when we were in person) to end every oral argument by shaking hands with opposing counsel. Some would refuse the proffered hand. Assholes always reveal themselves.
It used to be a regular question from law students whether they should go into defense or prosecution, and I would explain that we need both, that both are honorable and both serve to fulfill the promise of the adversary system, provided whichever side they’re on, the serve with integrity. I rarely get asked that question anymore. Now it’s, “am I an asshole if I become a prosecutor?”
I’ve never been to NOLA. Always wanted to go, and figured I would eventually get a gig there, but nope, never have.
“Now the sun’s gone to hell
And the moon’s riding high
Let me bid you farewell
Every man has to die
But it’s written in the starlight
And every line in your palm
We are fools to make war
On our brothers in arms.”
The way I was brought up, as well as my current beliefs on the issue, can best be summed in something an older lawyer told me after a case once where admittedly I’d been quite the little prick.
“Clients come and go, son, but we’ll still be here. If we (as in lawyers) can’t be nice to one another this whole damn system goes sideways.”
I’d further contend even if OC’s showing their ass you really should strive for civility. You look better as a result.
I should add that it’s been a general understanding wherever I’ve practiced that, with exceptions all around, criminal practice is far more civil than civil practice.
The crisis ain’t the problem…IT’S THE THREAT!!!
As I have nothing to contribute to this discussion due to my civilian status, I will simply take this opportunity, by right of Tuesday Talk rules, to wish you all a great day.
Damn civil of you.
“The reason was clear: his adversary denied his existence.”
It’s an odd paradigm where contention over guilt and innocence is less threatening than contention over the validity of an objective classification of biological sex. “My preferred pronouns are she/her and my preferred verdict is Not Guilty. One of these is non-negotiable, because my existence is not up for debate!”
I like the ambiguity in this post around whether SHG is adopting wokese or mocking it. If someone ever accuses me of denying his existence, I’ll have to stop myself from saying “That would be stupid, you are standing right there.”
Schrödinger’s SHG.
“When you got a job to do
You got to do it well
You got to give the other fellow hell”
— Paul McCartney, “Live and Let Die”
We confess to screaming at the DA in the cloakroom of the Appellate Division after he’d lied, just plain lied at oral argument. Nothing to do with saving the world, we just haven’t attained the necessary saintliness. We daily strive to improve.
I argued a murder for hire case in the 2d Dept. some years back. Unbeknownst to me, there was a fan of the appellant in the audience, and yelled “Yes, True, Absolutely” as I made my points, and “Bullshit, Liar, Scumbag” as the ADA made his. The justices were not pleased.
Afterward, he looked at me, and I shrugged and shook my head. He said, “well, you never know who’s gonna show for oral argument,” and shook my hand. I appreciated his understanding. Unfortunately, I don’t think the court felt as bad for me.
While I was shaking hands with the prosecutor after arguing that the state argued my client’s speedy trial rights when it charged him with the gang rape of a young girl 20 years earlier (I won the appeal, as was clear from the argument) – case dismissed), the now-adult accuser jumped up and demanded of the judges, “Where’s the justice for me?”
Prosecutor and I just stood there while the judges looked at each other and tried to figure out how best to slink out of the courtroom.
We don’t do justice. We do law.
–Oliver Wendell Holmes
Do it better then.
–Learned Hand
As to your question of civility, I’m reminded that I learned much of how I handle these situations from my dad. He never cursed or screamed – until he did. And if that happened on a rare occurrence, it was a last resort and for a particular reason.
I lived through a generation above me that seemed to understand when that line was crossed, even as we were told that no fighting was acceptable. That everything should be brought to the teacher or adult to be settled.
Now, as i see my little ones, I often wonder what a world of children told that all fighting is unacceptable has done to them?
Is “everything is violence” and therefore must be “called out to the mob” the price of leaving people bereft of real world capabilities to settle so much as a playground brawl on their own?
Maybe.
But as dad also told us, if you have to ask, it costs too much.