The Opinion emphasizes the need to protect client confidentiality, for attorneys to exhibit competence with practicing law virtually, and with respect to attorneys treating one another civilly in this new era of the practice.
Showing posts with label Civility. Show all posts
Showing posts with label Civility. Show all posts
Monday, April 13, 2020
Formal Opinion: "Ethical Obligations For Lawyers Working Remotely"
The Opinion emphasizes the need to protect client confidentiality, for attorneys to exhibit competence with practicing law virtually, and with respect to attorneys treating one another civilly in this new era of the practice.
Friday, August 21, 2015
ARTICLE: Vexatious Attorneys Should be Put in their Place
Below is a reprinting of my August 11, 2015 article from the Pennsylvania Law Weekly. It is republished here with permission from the editor/publisher. All rights reserved.
Legal Profession
Vexatious Attorneys Should Be Put in Their Place
Daniel E. Cummins, The Legal Intelligencer/Pennsylvania Law Weekly
August 11, 2015
Is there anything worse than a regularly rude, obnoxious, vexatious opposing counsel who acts purposefully to make the lives of other attorneys difficult? How about a judge either unwilling or unable to police his or her courtroom by resolutely stepping into the fray and swiftly putting the unnecessarily overzealous attorney into his or her place?
The Rules of Professional Conduct, the Code of Civility and the Pennsylvania Bar Association's Working Rules of Professionalism outline what is expected of the professionals who partake in the profession of the practice of law.
Yet, unless such ethical rules and codes of professionalism are enforced, those few wayward attorneys out there will, with impunity, continue to wreak havoc, bully their way through their careers, and cause unnecessary stress to others.
Overzealous Litigating is Unethical
In his Dec. 16, 2014, column in the Law Weekly, Chester County attorney Samuel Stretton, an analyst of attorney and judicial ethics, addressed the following inquiry: "I am dealing with a lawyer on the other side of litigation who calls himself extremely zealous. There is no issue he does not fight, there is no motion he does not file, and he treats me as if I was a mortal enemy. Is this kind of conduct acceptable and ethical?"
Stretton responded with a resounding and unequivocal, "No, this conduct is not acceptable."
Stretton went on to acknowledge in his article that attorneys are required to zealously represent their clients in a vigorous fashion, but still within certain limits. As examples, Stretton pointed to Rules 3.3 and 3.4 of the Rules of Professional Responsibility, which deal with fairness and candor to opposing counsel and to the court system.
The descent of properly zealous litigation down to just plain ignorance and bullying can possibly be partly blamed upon what young lawyers see on TV shows and movies glorifying smart alecky or downright rude attorneys. On the other hand, remember all the baby sharks that populated your law school class? Those former classmates, believe it or not, are now practicing lawyers with basically the same personality they had in law school.
For some lawyers, being rude and vexatious is innate. And, if allowed to continue unchecked, that poor behavior and unprofessionalism exhibited by some will continue to grow and expand, as the unfortunate natural tendency of such persons is to keep pushing the envelope until they are stopped.
As Stretton emphasized in his article, a "good lawyer doesn't focus on being overzealous or a bulldog." Rather, lawyers who excel in the practice focus on developing their knowledge of the law and advocate on behalf of their clients with the desired end in mind, as opposed to tangentially seeking to make every step of the litigation difficult for the opposition.
Duty of Judges to Police Their Courtroom
While bully attorneys attempt to intimidate and push their way through litigation outside of the courtroom, in the face of authority in the courtroom, they typically become as obsequious and magnanimous as Eddie Haskell from the old "Leave It To Beaver" episodes.
One typical tactic of such attorneys is to wrongfully withhold discovery and, when brought before the court on motion to compel, finally relent and agree to produce the requested, totally appropriate discovery. Such an attorney may even go so far as to make a grand pronouncement to the court that the parties were able to amicably resolve the issue prior to the need for any argument, knowing full well that their position was without merit in the first place and required needless expense, time and travel for the opposing counsel or that attorney's client relative to the court appearance.
In such scenarios, there may be no way for the court to act to curtail such behavior. However, when such issues do go to argument, and the court can sense shenanigans being played by one attorney in discovery or otherwise, opportunities arise for the court to let such counsel know that vexatious conduct in litigation will not be tolerated in that judge's courtroom.
As set forth in the Pennsylvania Trial Advocacy Handbook at Section 6.02, "in our courts, the trial judge is not a mere referee or moderator confined to calling fouls and making rulings when counsel require him to do so. It is his duty to see that the trial is conducted in an orderly fashion and that counsel, the parties and the witnesses conduct themselves properly."
In this regard, the courts of Pennsylvania have held that trial court judges have significant authority to police the proceedings in their own courtrooms as may be required by conduct of counsel, as in Commonwealth v. Sojourner, 408 A.2d 1100 (1978).
Misconduct in the courtroom, even in the form of a lack of professionalism toward the court or opposing counsel, should be treated as a serious matter, and the "onus is on the trial judge to avert or cure it" in order to ensure a fair trial on the merits for all parties, as the court held in Sojourner.
Under Pennsylvania law, any misconduct can and "should be checked immediately by the court on its own motion."
It has also repeatedly been held that the question of whether or not a lawyer's conduct goes beyond the limits of legitimate advocacy is "primarily for the discretion of the trial judge, and an appellate court will not interfere with the exercise of this discretion, unless the record manifests that it was clearly abused," as in Abrams v. Philadelphia Suburban Transportation, 264 A.2d 702, 704 (1970), and Ace American v. Lloyds, 939 A.2d 935 (Pa. Super. 2007).
However, in order to fully keep these wayward bully attorneys in check, it may be necessary not only for the trial court judge to put them in their place in the courtroom but to consider referring the attorney and the matter to the Disciplinary Board. Surely, a referral of a matter of discipline to the board by a judge, as opposed to an attorney, would have more weight. By and large, attorneys are reluctant to report other attorneys for unprofessionalism, believing that a proper remedy to the situation will not be forthcoming, thereby leaving the reporting attorney to have to deal with a now vengeful bully attorney for the rest of his or her career.
If, however, the matter is referred to the board, the issue becomes to what extent the board desires to uphold the applicable rules pertaining to professionalism and professional conduct.
Notably, reading the periodically published notices of discipline put out by the board fails to reveal any regular public reprimands for such conduct pertaining to unprofessionalism and unnecessarily vexatious conduct. If such cases are instead being handled only by way of private reprimand by the board, a question remains as to whether such handling is effective in correcting the aberrant behavior at issue.
Unfortunately, overzealous, rude and obnoxious attorneys will always be around to make things difficult and give the practice of law a bad name. Fortunately, these attorneys are the exception and not the norm. But it sure would be nice to see one of them put in his or her place once in a while.
Special to the Law Weekly Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley Comerford & Cummins. His civil litigation blog, Tort Talk, can be viewed at www.TortTalk.com.
Legal Profession
Vexatious Attorneys Should Be Put in Their Place
Daniel E. Cummins, The Legal Intelligencer/Pennsylvania Law Weekly
August 11, 2015
Is there anything worse than a regularly rude, obnoxious, vexatious opposing counsel who acts purposefully to make the lives of other attorneys difficult? How about a judge either unwilling or unable to police his or her courtroom by resolutely stepping into the fray and swiftly putting the unnecessarily overzealous attorney into his or her place?
The Rules of Professional Conduct, the Code of Civility and the Pennsylvania Bar Association's Working Rules of Professionalism outline what is expected of the professionals who partake in the profession of the practice of law.
Yet, unless such ethical rules and codes of professionalism are enforced, those few wayward attorneys out there will, with impunity, continue to wreak havoc, bully their way through their careers, and cause unnecessary stress to others.
Overzealous Litigating is Unethical
In his Dec. 16, 2014, column in the Law Weekly, Chester County attorney Samuel Stretton, an analyst of attorney and judicial ethics, addressed the following inquiry: "I am dealing with a lawyer on the other side of litigation who calls himself extremely zealous. There is no issue he does not fight, there is no motion he does not file, and he treats me as if I was a mortal enemy. Is this kind of conduct acceptable and ethical?"
Stretton responded with a resounding and unequivocal, "No, this conduct is not acceptable."
Stretton went on to acknowledge in his article that attorneys are required to zealously represent their clients in a vigorous fashion, but still within certain limits. As examples, Stretton pointed to Rules 3.3 and 3.4 of the Rules of Professional Responsibility, which deal with fairness and candor to opposing counsel and to the court system.
The descent of properly zealous litigation down to just plain ignorance and bullying can possibly be partly blamed upon what young lawyers see on TV shows and movies glorifying smart alecky or downright rude attorneys. On the other hand, remember all the baby sharks that populated your law school class? Those former classmates, believe it or not, are now practicing lawyers with basically the same personality they had in law school.
For some lawyers, being rude and vexatious is innate. And, if allowed to continue unchecked, that poor behavior and unprofessionalism exhibited by some will continue to grow and expand, as the unfortunate natural tendency of such persons is to keep pushing the envelope until they are stopped.
As Stretton emphasized in his article, a "good lawyer doesn't focus on being overzealous or a bulldog." Rather, lawyers who excel in the practice focus on developing their knowledge of the law and advocate on behalf of their clients with the desired end in mind, as opposed to tangentially seeking to make every step of the litigation difficult for the opposition.
Duty of Judges to Police Their Courtroom
While bully attorneys attempt to intimidate and push their way through litigation outside of the courtroom, in the face of authority in the courtroom, they typically become as obsequious and magnanimous as Eddie Haskell from the old "Leave It To Beaver" episodes.
One typical tactic of such attorneys is to wrongfully withhold discovery and, when brought before the court on motion to compel, finally relent and agree to produce the requested, totally appropriate discovery. Such an attorney may even go so far as to make a grand pronouncement to the court that the parties were able to amicably resolve the issue prior to the need for any argument, knowing full well that their position was without merit in the first place and required needless expense, time and travel for the opposing counsel or that attorney's client relative to the court appearance.
In such scenarios, there may be no way for the court to act to curtail such behavior. However, when such issues do go to argument, and the court can sense shenanigans being played by one attorney in discovery or otherwise, opportunities arise for the court to let such counsel know that vexatious conduct in litigation will not be tolerated in that judge's courtroom.
As set forth in the Pennsylvania Trial Advocacy Handbook at Section 6.02, "in our courts, the trial judge is not a mere referee or moderator confined to calling fouls and making rulings when counsel require him to do so. It is his duty to see that the trial is conducted in an orderly fashion and that counsel, the parties and the witnesses conduct themselves properly."
In this regard, the courts of Pennsylvania have held that trial court judges have significant authority to police the proceedings in their own courtrooms as may be required by conduct of counsel, as in Commonwealth v. Sojourner, 408 A.2d 1100 (1978).
Misconduct in the courtroom, even in the form of a lack of professionalism toward the court or opposing counsel, should be treated as a serious matter, and the "onus is on the trial judge to avert or cure it" in order to ensure a fair trial on the merits for all parties, as the court held in Sojourner.
Under Pennsylvania law, any misconduct can and "should be checked immediately by the court on its own motion."
It has also repeatedly been held that the question of whether or not a lawyer's conduct goes beyond the limits of legitimate advocacy is "primarily for the discretion of the trial judge, and an appellate court will not interfere with the exercise of this discretion, unless the record manifests that it was clearly abused," as in Abrams v. Philadelphia Suburban Transportation, 264 A.2d 702, 704 (1970), and Ace American v. Lloyds, 939 A.2d 935 (Pa. Super. 2007).
However, in order to fully keep these wayward bully attorneys in check, it may be necessary not only for the trial court judge to put them in their place in the courtroom but to consider referring the attorney and the matter to the Disciplinary Board. Surely, a referral of a matter of discipline to the board by a judge, as opposed to an attorney, would have more weight. By and large, attorneys are reluctant to report other attorneys for unprofessionalism, believing that a proper remedy to the situation will not be forthcoming, thereby leaving the reporting attorney to have to deal with a now vengeful bully attorney for the rest of his or her career.
If, however, the matter is referred to the board, the issue becomes to what extent the board desires to uphold the applicable rules pertaining to professionalism and professional conduct.
Notably, reading the periodically published notices of discipline put out by the board fails to reveal any regular public reprimands for such conduct pertaining to unprofessionalism and unnecessarily vexatious conduct. If such cases are instead being handled only by way of private reprimand by the board, a question remains as to whether such handling is effective in correcting the aberrant behavior at issue.
Unfortunately, overzealous, rude and obnoxious attorneys will always be around to make things difficult and give the practice of law a bad name. Fortunately, these attorneys are the exception and not the norm. But it sure would be nice to see one of them put in his or her place once in a while.
Special to the Law Weekly Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley Comerford & Cummins. His civil litigation blog, Tort Talk, can be viewed at www.TortTalk.com.
Monday, December 1, 2014
ARTICLE: 'Tis the Season to Be Civil: Lessons from 'A Chrstimas Story'
The below article of mine recently appeared in the November/December edition of the Pennsylvania Lawyer Magazine and is republished here with permission. Hope you enjoy it:
'Tis the Season to Be Civil
Lessons from 'A Christmas Story'
by Daniel E. Cummins
It’s almost that time of year again — almost Christmas Day and 24 straight hours of the movie "A Christmas Story," with little Ralphie Parker calling viewers back to their childhoods, provoking memories of the timeless, indelible and universal experiences of the holiday season.
Ralphie, narrating in his adult voice: "Christmas was on its way. … Lovely, beautiful, glorious Christmas, upon which the entire kid year revolved!" That great time of the year has come again, when, as Ralphie puts it, "We [plunge] into the cornucopia, quivering with desire and the ecstasy of unbridled avarice."
In addition to glorifying the holiday season, the movie is a gift of life lessons, some of which can even be applied to the practice of law.
Mr. Parker, reading the side of the box containing the prize he’s won: " ‘Fra-gi-ley.’ That must be Italian." Mrs. Parker: "I think that says ‘Fragile’." Mr. Parker: "Oh, yeah."
Trying to use new words in your vocabulary can cause embarrassment when more common words will suffice (um, I mean, when more common words will do). While the practice of law is filled with
Latin terms and legalese, and while some lawyers think they are fancy people who have to use fancy words just because they have a law degree, no normal person would use "heretofore" or "aforementioned" in a spoken sentence.
Speaking normally, avoiding legalese and Latin, and knowing the words you are reading or saying to others will help you to connect with a jury and, in your overall practice of law, take you further in successful interactions with others, be they jury, clients, opposing counsel or the court.
Ralphie, narrating as an adult: "My father worked in profanity the way other artists might work in oils or clay. It was his true medium."
Although the thought of using profanity in the law is often enticing, this quote does not advocate the use of such language, other than in unleashing a tirade within your mind against a vexatious opposing counsel or a cantankerous judge who has chastised or embarrassed you, just to get that anger and stress out of your system.
This quote is also offered to suggest that it pays to find a niche in a particular practice area and become a master at it. With all the loopholes and trapdoors present in the many different areas of the law, an attorney’s stress level can be reduced by sticking to fewer areas of practice in which to excel. Increasing one’s reputation in fewer areas of the law should lead to more referrals from other attorneys who dare not dabble in your area of expertise.
Ralphie, narrating as an adult: "Getting ready to go to school was like getting ready for extended deep-sea diving."
It’s a funny scene in the movie when Ralphie’s mom gets Randy, Ralphie’s younger brother, ready to go out in the cold Cleveland weather by using the universal tactic of all mothers: tugging on layers of socks, pants, shirts, coats, hats, gloves and scarves to the point that the poor kid can’t speak clearly or move his muffled arms and legs.
Layering can have a positive effect in trial preparation. Layers and layers of preparation should be applied to ensure that you know a file inside and out before you enter the courtroom. In order to make the matter properly fit your theory, each layer of your case, from opening to closing, should be neatly organized, one layer on top of the other in an orderly fashion, so the case will flow at trial. Just be sure to keep your case presentation to the salient points necessary to stay with the jury. Overdoing the layers will only serve to hamper your flexibility and muffle your message.
Ralphie: "Scut Farkus! What a rotten name. … There he stood, between us and the alley. Scut Farkus staring out at us with his yellow eyes. He had yellow eyes! So help me, God, yellow eyes."
There’s at least one in every county — a Scut Farkus-like attorney who gets off on bullying his or her way through the litigation process outside the presence of the authority figure of the court.
Unfortunately, these bullies usually train their associate attorneys to practice in the same unsavory manner, much in the way toady sidekick Grover Dill serves Scut Farkus in the movie. And so the cycle regrettably continues, as these bully attorneys abuse the rules of civility without fear of repercussions from any ethics board or judge. The Rules of Professional Conduct have no teeth in regulating civility among lawyers, and judges often ignore the consternation caused by bullying and unreasonable attorneys, not wanting to be bothered with the tedium of maintaining decorum among the attorneys inside or outside of their courtrooms. In the end, ignoring the misconduct of these attorneys ultimately reflects poorly on these particular courts.
But, as Scut Farkus learns the hard way, sometimes what goes around comes around, and, hopefully, the bully attorneys will get their due one way or the other down the line.
As noted below, "A Christmas Story" teaches us that there are at least two ways to deal with a bully.
Ralphie, narrating as an adult, describing his brother’s encounter with the bullies: "Randy lay there like a slug. It was his only defense."
As Randy lay there, the attention of Scut Farkus was fortunately diverted elsewhere. Similarly, it may pay to lie low for a day or two after first receiving a bullying voicemail, email or letter from an unreasonable and emotionally ugly opposing counsel. Bullying attorneys usually have several needless fights going on at once and it may pay not to engage immediately in response. If a response is necessary, prepare a calm, cool and collected letter to be sent by snail mail, extending the cooling-off period even longer.
More often, however, a slug-like response to such bullying is not appropriate, and standing up to the bully to protect a client’s interest is a more appropriate response.
Ralphie, narrating as an adult, describing a different kind of reaction to an encounter with the bullies: "I have since heard of people under extreme duress speaking in strange tongues. I became conscious that a steady torrent of obscenities and swearing of all kinds was pouring out of me as I screamed."
While physically pummeling or verbally going up one side and down the other of a bullying opposing attorney is (unfortunately) frowned upon in our noble profession, some bullying cannot be allowed to
go unopposed.
Unreasonable opposing attorneys usually seek out and relish verbal skirmishes as a way to compensate for and distract from their sad fears of the inferiority of their own skills, not to mention their likely lack of self-esteem and confidence.
Rather than engaging the blustery rhetoric of a totally unreasonable attorney on the phone or in person, it may be more advisable to deal with such bullying barristers at arm’s length in written confirming letters or emails to lock them into place on a particular issue and thereby prevent them from slithering out of commitments or advances made in the litigation.
Moreover, if it becomes necessary, such attorneys will usually wilt in the face of the threat of court intervention by way of a motion to compel or otherwise. One can only hope that a judge repeatedly faced with needless issues caused by a bullying attorney will someday put that attorney in his or her rightful place so the unnecessary, uncivil conduct stops.
In the end, the key is not to succumb to the jeering dares, taunts or tactics of a bullying attorney by reacting in a way that you may regret later.
Flick: "Are you kidding? Stick my tongue to that stupid pole? That’s dumb." Schwartz: "That’s ‘cause you know it’ll stick!" Flick: "You’re full of it." Schwartz: "Oh yeah?" Flick: "Yeah!" Schwartz: "Well I double-dog dare ya!" Ralphie, narrating as an adult: "Now it was serious. A double-dog dare. What else was there but a ‘triple dare you’? And finally, the coup de grace of all dares, the sinister triple-dog dare." Schwartz: "I triple-dog dare ya!" Ralphie, narrating as an adult: "Schwartz created a slight breach of etiquette by skipping the triple dare and going right for the throat!"
Just as etiquette is to be followed during the height of a playground challenge, so should etiquette be followed in the heat of a legal battle. For example, rather than skipping over professional courtesies and slapping an opponent with a discovery motion to compel on the 31st day, start with a polite "dare" to opposing counsel that his or her not answering discovery within another 30 days will provoke a motion to compel. When that time runs out, maybe even hit the opponent with a "double-dog dare" thereafter by way of a second letter noting that you will have no choice but to proceed with the motion if the responses are not promptly produced.
At later proceedings in the litigation, such as at trial, be up-front and forthright with opposing counsel regarding your plan of action, and hopefully expect the same courtesy in return. For example, let opposing counsel know your planned order of witnesses and what exhibits you intend to use.
In the end, when going toe-to-toe with opposing counsel in discovery or at trial, listen to your gut instinct and refrain from succumbing to the pressures of "dares" or tactics that might take your case in the wrong direction.
Mr. Parker: "It’s a major award." Swede: "A major award? Shucks, I wouldn’t have known that. It looks like a lamp." Mr. Parker: "Is is a lamp, you nincompoop. But it’s a major award. I won it." Swede: "Damn, hell, you say you won it?" Mr. Parker: "Yeah. Mind power, Swede, mind power."
The leg-lamp award in "A Christmas Story" is arguably one of the most iconic and recognizable movie props of all time. The lesson here is to remember that perceptions matter in life and in the practice of law. The movie shows that if such a ridiculous object can be viewed as a mere lamp by one person and yet a "major award" by another, there is always the chance that a skillful presentation of a weak legal argument or theory of a case may pass muster and even be accepted by others if you truly believe that what you are arguing for is the proper perception of the matter.
Just about everyone other than Ralphie: "You’ll shoot your eye out kid!"
In "A Christmas Story," the one present 9-year-old Ralphie desires most is a Red Ryder BB gun, but he is repeatedly rebuffed in this quest with the above quote from his mother, his teacher and even Santa Claus. In the end, however, Ralphie’s old man comes through with the gift on that glorious Christmas morning.
There’s no real lesson here for the legal world, rather only a hope that the holidays bring to all the gift of childlike joy, excitement and enjoyment of this wonderful season of the year.
Daniel E. Cummins is a partner in the Scranton law firm of Foley, Comerford & Cummins with more than 15 years of insurance defense experience. He focuses his practice on motor vehicle accident liability, uninsured and underinsured motorist arbitration matters, and premises- and products-liability cases. He is also the creator and writer of the Tort Talk Blog at www.TortTalk.com.
'Tis the Season to Be Civil
Lessons from 'A Christmas Story'
by Daniel E. Cummins
Ralphie, narrating in his adult voice: "Christmas was on its way. … Lovely, beautiful, glorious Christmas, upon which the entire kid year revolved!" That great time of the year has come again, when, as Ralphie puts it, "We [plunge] into the cornucopia, quivering with desire and the ecstasy of unbridled avarice."
In addition to glorifying the holiday season, the movie is a gift of life lessons, some of which can even be applied to the practice of law.
* * *
Mr. Parker, reading the side of the box containing the prize he’s won: " ‘Fra-gi-ley.’ That must be Italian." Mrs. Parker: "I think that says ‘Fragile’." Mr. Parker: "Oh, yeah."
Trying to use new words in your vocabulary can cause embarrassment when more common words will suffice (um, I mean, when more common words will do). While the practice of law is filled with
Speaking normally, avoiding legalese and Latin, and knowing the words you are reading or saying to others will help you to connect with a jury and, in your overall practice of law, take you further in successful interactions with others, be they jury, clients, opposing counsel or the court.
* * *
Ralphie, narrating as an adult: "My father worked in profanity the way other artists might work in oils or clay. It was his true medium."
Although the thought of using profanity in the law is often enticing, this quote does not advocate the use of such language, other than in unleashing a tirade within your mind against a vexatious opposing counsel or a cantankerous judge who has chastised or embarrassed you, just to get that anger and stress out of your system.
This quote is also offered to suggest that it pays to find a niche in a particular practice area and become a master at it. With all the loopholes and trapdoors present in the many different areas of the law, an attorney’s stress level can be reduced by sticking to fewer areas of practice in which to excel. Increasing one’s reputation in fewer areas of the law should lead to more referrals from other attorneys who dare not dabble in your area of expertise.
* * *
Ralphie, narrating as an adult: "Getting ready to go to school was like getting ready for extended deep-sea diving."
Layering can have a positive effect in trial preparation. Layers and layers of preparation should be applied to ensure that you know a file inside and out before you enter the courtroom. In order to make the matter properly fit your theory, each layer of your case, from opening to closing, should be neatly organized, one layer on top of the other in an orderly fashion, so the case will flow at trial. Just be sure to keep your case presentation to the salient points necessary to stay with the jury. Overdoing the layers will only serve to hamper your flexibility and muffle your message.
* * *
Ralphie: "Scut Farkus! What a rotten name. … There he stood, between us and the alley. Scut Farkus staring out at us with his yellow eyes. He had yellow eyes! So help me, God, yellow eyes."
There’s at least one in every county — a Scut Farkus-like attorney who gets off on bullying his or her way through the litigation process outside the presence of the authority figure of the court.
Unfortunately, these bullies usually train their associate attorneys to practice in the same unsavory manner, much in the way toady sidekick Grover Dill serves Scut Farkus in the movie. And so the cycle regrettably continues, as these bully attorneys abuse the rules of civility without fear of repercussions from any ethics board or judge. The Rules of Professional Conduct have no teeth in regulating civility among lawyers, and judges often ignore the consternation caused by bullying and unreasonable attorneys, not wanting to be bothered with the tedium of maintaining decorum among the attorneys inside or outside of their courtrooms. In the end, ignoring the misconduct of these attorneys ultimately reflects poorly on these particular courts.
But, as Scut Farkus learns the hard way, sometimes what goes around comes around, and, hopefully, the bully attorneys will get their due one way or the other down the line.
As noted below, "A Christmas Story" teaches us that there are at least two ways to deal with a bully.
* * *
Ralphie, narrating as an adult, describing his brother’s encounter with the bullies: "Randy lay there like a slug. It was his only defense."
More often, however, a slug-like response to such bullying is not appropriate, and standing up to the bully to protect a client’s interest is a more appropriate response.
* * *
Ralphie, narrating as an adult, describing a different kind of reaction to an encounter with the bullies: "I have since heard of people under extreme duress speaking in strange tongues. I became conscious that a steady torrent of obscenities and swearing of all kinds was pouring out of me as I screamed."
While physically pummeling or verbally going up one side and down the other of a bullying opposing attorney is (unfortunately) frowned upon in our noble profession, some bullying cannot be allowed to
go unopposed.
Unreasonable opposing attorneys usually seek out and relish verbal skirmishes as a way to compensate for and distract from their sad fears of the inferiority of their own skills, not to mention their likely lack of self-esteem and confidence.
Rather than engaging the blustery rhetoric of a totally unreasonable attorney on the phone or in person, it may be more advisable to deal with such bullying barristers at arm’s length in written confirming letters or emails to lock them into place on a particular issue and thereby prevent them from slithering out of commitments or advances made in the litigation.
Moreover, if it becomes necessary, such attorneys will usually wilt in the face of the threat of court intervention by way of a motion to compel or otherwise. One can only hope that a judge repeatedly faced with needless issues caused by a bullying attorney will someday put that attorney in his or her rightful place so the unnecessary, uncivil conduct stops.
In the end, the key is not to succumb to the jeering dares, taunts or tactics of a bullying attorney by reacting in a way that you may regret later.
* * *
Flick: "Are you kidding? Stick my tongue to that stupid pole? That’s dumb." Schwartz: "That’s ‘cause you know it’ll stick!" Flick: "You’re full of it." Schwartz: "Oh yeah?" Flick: "Yeah!" Schwartz: "Well I double-dog dare ya!" Ralphie, narrating as an adult: "Now it was serious. A double-dog dare. What else was there but a ‘triple dare you’? And finally, the coup de grace of all dares, the sinister triple-dog dare." Schwartz: "I triple-dog dare ya!" Ralphie, narrating as an adult: "Schwartz created a slight breach of etiquette by skipping the triple dare and going right for the throat!"
Just as etiquette is to be followed during the height of a playground challenge, so should etiquette be followed in the heat of a legal battle. For example, rather than skipping over professional courtesies and slapping an opponent with a discovery motion to compel on the 31st day, start with a polite "dare" to opposing counsel that his or her not answering discovery within another 30 days will provoke a motion to compel. When that time runs out, maybe even hit the opponent with a "double-dog dare" thereafter by way of a second letter noting that you will have no choice but to proceed with the motion if the responses are not promptly produced.
At later proceedings in the litigation, such as at trial, be up-front and forthright with opposing counsel regarding your plan of action, and hopefully expect the same courtesy in return. For example, let opposing counsel know your planned order of witnesses and what exhibits you intend to use.
In the end, when going toe-to-toe with opposing counsel in discovery or at trial, listen to your gut instinct and refrain from succumbing to the pressures of "dares" or tactics that might take your case in the wrong direction.
* * *
Mr. Parker: "It’s a major award." Swede: "A major award? Shucks, I wouldn’t have known that. It looks like a lamp." Mr. Parker: "Is is a lamp, you nincompoop. But it’s a major award. I won it." Swede: "Damn, hell, you say you won it?" Mr. Parker: "Yeah. Mind power, Swede, mind power."
The leg-lamp award in "A Christmas Story" is arguably one of the most iconic and recognizable movie props of all time. The lesson here is to remember that perceptions matter in life and in the practice of law. The movie shows that if such a ridiculous object can be viewed as a mere lamp by one person and yet a "major award" by another, there is always the chance that a skillful presentation of a weak legal argument or theory of a case may pass muster and even be accepted by others if you truly believe that what you are arguing for is the proper perception of the matter.
* * *
Just about everyone other than Ralphie: "You’ll shoot your eye out kid!"
In "A Christmas Story," the one present 9-year-old Ralphie desires most is a Red Ryder BB gun, but he is repeatedly rebuffed in this quest with the above quote from his mother, his teacher and even Santa Claus. In the end, however, Ralphie’s old man comes through with the gift on that glorious Christmas morning.
There’s no real lesson here for the legal world, rather only a hope that the holidays bring to all the gift of childlike joy, excitement and enjoyment of this wonderful season of the year.
Daniel E. Cummins is a partner in the Scranton law firm of Foley, Comerford & Cummins with more than 15 years of insurance defense experience. He focuses his practice on motor vehicle accident liability, uninsured and underinsured motorist arbitration matters, and premises- and products-liability cases. He is also the creator and writer of the Tort Talk Blog at www.TortTalk.com.
Source of Images and Quotes: A Christmas Story (1983).
Thursday, October 31, 2013
HAPPY HALLOWEEN
HAPPY HALLOWEEN GREETINGS
FROM
TORT TALK
I invite Defense attorneys to "dress up" as Plaintiff's attorneys in their mindset just for a moment on this Halloween day and picture the difficulties and pressures faced by attorneys on that side of the bar.
I also invite Plaintiff's attorneys to don the costume of a defense attorney's mindset, if only for a brief moment, and think of the burdens and stress faced by defense attorneys.
I also invite Plaintiff's attorneys to don the costume of a defense attorney's mindset, if only for a brief moment, and think of the burdens and stress faced by defense attorneys.
I then also invite all attorneys on both sides of the civil litigation bar "to be" claims professionals for Halloween for a moment in their minds today and realize the pressures and stresses faced by those individuals in their livelihood.
Similarly, all claims professionals are invited "to be" attorneys for a few moments as a Halloween costume and think of the responsibilities and strains that each profession imposes upon its participants day in and day out.
Similarly, all claims professionals are invited "to be" attorneys for a few moments as a Halloween costume and think of the responsibilities and strains that each profession imposes upon its participants day in and day out.
By being considerate of the position of others and by viewing the world from the perspective of the opposite side, we may all be reminded our way is not the only way and that we are all willing participants in the noble pursuit of the fair administration of justice and compensation in the civil litigation world.
By working together in a reasonable and professional fashion, we can all strive to further this noble and honorable pursuit, uplift the reputation of the respective professions, and continue to ward off the scary thought of the alternative--the resolution of compensatory disputes in the absence of law and order.
Whew!.......enough of that heady stuff. Now go raid your kid's Halloween bag for the good stuff.
******************************
Whew!.......enough of that heady stuff. Now go raid your kid's Halloween bag for the good stuff.
Source of image: www.dtntech.com
Wednesday, September 25, 2013
Encouraging Attorney Civility During Depositions
The article serves as an excellent primer for young and old alike regarding professionalism and proper conduct to be utilized at depositions.
The article begins with a quote from United States Supreme Court Chief Justice Warren E. Burger in part of which Justice Burger states, "I submit that lawyers who know how to think but have not learned to behave are a menace and a liability, not an asset, to the administration of justice."
The article goes on to review the 1993 decision in Hall v. Clifton Precision, 150 F.R.D. 525 (E.D.Pa. 1993 by the late Judge Robert S. Gawthrop III as a guide for the regulation of attorney conduct at depositions. Generally, the decision all but abolished attorney-client conferences before answering a pending question, attempted to prevent witness coaching, and limited the type and manner of objections allowed.
The article goes on to give interesting examples from actual depositions. Overall, the article is an excellent read.
I send thanks to Attorney Paul Oven of the Moosic, PA law firm of Dougherty, Leventhal & Price for bringing this article to my attention. I also thank Attorney Wilkinson for granting permission to link to the article from Tort Talk.
Sunday, February 13, 2011
ARTICLE: SPREAD A LITTLE LOVE
In honor of Valentine's Day, I figured I would re-run this article of mine that previously appeared in the January 25, 2010 edition of the Pennsylvania Law Weekly,(c) 2009 Incisive Media US Properties, LLC.
Spread A Little Love:
Being pleasant and considerate is part of being a professional
By Daniel E.Cummins
Special to the Law Weekly
DanCummins@comcast.net
The New Year is still in its early stages and, less than one month in, it's not too late to renew those resolutions you may have already broken.
With Valentine's Day approaching, consider the following ways to resolve to spread a little love in and out of your practice in the month of February and beyond:
Express Appreciation to Your Staff
Day in and day out your staff shows up to type your verbose and, at times, pompous-sounding legal dictation, replete with legalese and, at times, even Latin. Did you ever stop and wonder what they ever did in life to deserve the fate of listening to this drivel?
Daily expressions of gratitude towards your staff are warranted, for without them, your office could not function. Throw out a "nice job," "thanks for keeping up with the dictation," or "I appreciate you taking the initiative on that." Always say "please" and "thank you."
Return Phone Calls
It's rude not to return phone calls, even to those we'd rather not deal with. If you owe a return phone call that you are dreading, return it even if it means leaving a voice mail after hours in the hopes of not reaching the recipient. In the alternative, respond in writing if possible. Remember, every communication brings you one step closer to the end of that case and the end of dealing with that frustratingly aggravating attorney or client.
Show Interest in Others
See the person behind your opposing counsel -- and I don't mean their client. Take an interest in them. Ask about their family, their hobbies, their vacations or their life outside of work.
Be complimentary to others. One way is to make it a habit of complimenting other people's neckties where warranted. More often than not the person wearing the tie spent time picking it out and will appreciate it being noticed. It's probably best, however, not to point out the speck of mustard on the tie.
Be Considerate About Technology
Be considerate in communicating with others and ignore your cell phone or Blackberry when conversing. Answering your cell phone or constantly looking at your Blackberry while someone is talking to you is rude and signals that you are not interested in what they have to say. Why should they then have any interest in you or what you have to say?
Whatever is coming through to you on your portable device will still be there when your in-person conversation is over. Improve your interpersonal dealings with others by giving them your undivided attention.
Smile
In Dale Carnegie's classic book "How to Win Friends and Influence People," recommended here as an annual assignment for enjoyment and self-improvement, it is suggested that you greet everyone you contact with a smile. It shows you are friendly, welcomes and relaxes the recipient and opens them up to accepting the information you have to present to them.
Grant Professional Courtesies
Grant professional courtesies to others on a routine basis, as recommended by the Pennsylvania Bar Association's Rules on Professionalism. Remember, what goes around, comes around. Routinely sending out good karma may come back to you two-fold in the future when you most need it.
Show Gratitude to Your Spouse
Show some appreciation to your spouse or significant other for living with the demands of your chosen profession and for putting up with your jealous mistress (or gentleman caller), The Law. Take him or her out to dinner unexpectedly. Stay home on a Saturday. Throw in a little humor -- maybe even show your spouse some deference by beginning requests with, "May it please the spouse."
Think about the total energy, dedication and attention you put into trial preparation. When not bogged down by a trial or a deadline, refocus that energy and dedication on your family and friends. Aren't they just as worthy, if not more so, of that type of attention from you?
Take Care of Yourself
Take pains to make yourself more "lovable" (well -- we're lawyers -- let's try for "likeable") by purposefully getting away from the practice of law, whether it be on vacation or simply "me" time with friends and family. Exercise away the frustrations of the practice of law. Play hooky and take a "mental health" day and do something you enjoy that maybe you haven't done in years. Read good prose for enjoyment's sake. It may even serve to help your own writing abilities.
Efforts to escape and focus on yourself on occasion, along with the other good habits noted above, can only result in easing the stress of this profession, make you a more enjoyable person to be around and may even serve to increase your productivity as an attorney.
•
Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley, Cognetti, Comerford, Cimini & Cummins. Cummins' civil litigation blog, "Tort Talk," may be viewed at http://www.torttalk.com/.
Saturday, March 13, 2010
ARTICLE: A St. Patrick's Day Parade of Proverbs
A St. PATRICK’S DAY PARADE OF PROVERBS
by
Daniel E. Cummins
With the St. Patrick’s Day celebration of all things Irish many famous Irish proverbs come to mind. As the Irish have noted, “Proverbs can not be contradicted.” Applying Irish proverbs to the practice of law can be enlightening for as Irish playwright John Millington Synge once noted, “There is no language like the Irish for soothing and quieting.”
A closed mouth—a wise head.
Although the Irish are known for the gift of gab, they also recognize that sometimes, the less said the better. This can be seen in the practice of law in judicial opinions where judges write concisely in an effort to streamline their opinion on the issues presented and avoid the possibility of inadvertently raising appellate issues.
Litigators may benefit from speaking concisely when addressing the court or a jury. Another Irish instruction is to “Say little, but say it well.” For example, it is often recommended that trial counsel keep objections to a minimum so as not to irk the trial judge or appear as if one is attempting to hide something of importance from a jury. As the Irish also say, “A silent mouth never did any harm.”
Conversely, another wise Irish proverb is that “A loud voice can make even the truth sound foolish.” Bombastic and arrogant presentations by attorneys cause the immediate perception that what is being said is either devoid of merit or, at best, suspect. Efforts at tempering one’s argument in accordance with the applicable law and avoiding personal attacks on opposing counsel will only serve to add credibility to the position being advocated.
A good beginning is half the work.
Whether it be the first words spoken to a judge or jury or the opening sentences of a brief, the beginning of one’s presentation can make or break a case. Overworked judges reading hundreds of briefs and bored jurors will appreciate the fresh notion of arguments that quickly get to the point and remain there.
In terms of oral presentation to a judge or jury, first impressions last forever. The crux of an argument or the theory of the case should comprise the first words out of an attorney’s mouth. A concise description of the dispute presented and why fairness dictates a ruling in favor of one’s client should be forcefully advocated from the get-go.
With brief writing, the typical generic opening paragraphs providing a boring statement of the facts should be eschewed in favor of a more pointed story comprised of the impact facts crucial to the issue presented followed by a concise recitation of the reasons why the court should rule in one’s client’s favor.
The goal of the initial paragraphs of a brief should be to grab the attention of the reader and direct it immediately to the position advocated. Simply put, interesting writing is persuasive writing.
If a rogue deceives me once, shame on him.
If he deceives me twice, shame on me.
Unfortunately, at various times in one’s practice, attorneys have to deal with another attorney that, to use the Irish vernacular, can be described no better terms than as a scoundrel.
When dealing with such attorneys for the first time, one may make a mistake or let their guard down providing an opportunity for the other attorney to take an untoward advantage in the case. But as Irish novelist James Joyce once noted, “Mistakes are the portals of discovery.” Once it is discovered through a mistake that opposing counsel can not be trusted to play by the rules or act with professional courtesy, one can take steps to prevent the situation from occurring again.
It is unfortunate that attorneys can not always rely upon the courts for relief from vexatious and dilatory tactics of a recalcitrant opposing counsel. While such weasel-like attorneys may treat opposing counsel in a reprehensible fashion, they are usually wise enough to appear before the court in the character of Eddie Haskell, the bully from the old Leave It To Beaver television show, who always took on an oily obsequious manner whenever faced with an authority figure in order to stay out of trouble.
Judges have to be even-handed when dealing with such disputes and may not always be in a position to properly address the tactics of such an opposing counsel. One should rest assured, however, that these types of attorneys routinely appear before the court on repetitive and petty issues such that their reputation for vexatiousness becomes engrained and, hopefully acknowledged and punished.
What this Irish proverb suggests is that an attorney should keep negative tactics of a particular opposing counsel in the memory bank and share such information with other attorneys so as to limit the ability of the attorney to engage in improper or unnecessary behavior.
As sung by legendary Irish rocker Bono of U2 in the song “Acrobat,” “Don’t let the bastards grind you down.”
Remember, even if you lose all, keep your good name,
for if you lose that, you are worthless.
An oft indicated principle or truth is that an attorney’s word is his bond. The Irish also proverbially quip that “A promise is a debt.” Developing a reputation for being good for one’s word and keeping promises is a virtue that can carry an attorney through his career above all else in terms of relations with the court and opposing counsel.
Without a doubt, a lawyer’s reputation precedes his interactions with all in the practice. When picking up new files, lawyers will typically first look to see who is on the other side and if that person is unknown, efforts will be made to ascertain the reputation of that attorney and how he or she handles cases.
Day in and day out, thoroughness and integrity in preparation and presentation along with punctuality and professional courtesy are the important building blocks of a solid reputation in the practice of law. Adherence to these positive characteristics will not only serve to enhance one’s stature among fellow members of the bar and the judiciary but may also allow one to secure an even more favorable result for one’s client.
If you lie down with dogs, you’ll rise with fleas.
Poor cases are often referred to in the practice as “dogs.” In developing one’s practice, while it may be understandable that an attorney may take on a few cases having difficult liability hurdles or questionable damages, it may be wise for counsel to avoid a proliferation of these cases such that one’s office turns into a dog pound.
Taking on too many troublesome cases can affect one’s reputation and the fleas from the dog cases might not only leech onto the attorney but may even possibly carry over and affect the value of the other more profitable cases in the office. As the great Irish poet William Butler Yeats once wrote, “But was there ever dog that praised his fleas.”
Accordingly, care should be taken in accepting new clients As the Irish also say, “If you put a silk dress on a goat, he is still a goat.” In other words, even the best of attorneys may not have the skills to put the shine on a tarnished case of little or no value. Attorneys may be wise to protect their reputations by refusing such cases in the first instance, or at the very least, referring them out for others to handle.
Never put off til tomorrow what you can do today.
As a catalyst for unnecessary stress, procrastination may be the worse enemy of an attorney. By continually putting off job tasks until the last moment, attorneys may be forced to scramble to complete a work product, such as a brief, and the end result is usually sub-par.
In keeping with the best possible service the client is entitled to by virtue of their entrusting their cause to an attorney, the better practice may be to look ahead to the following months deadlines and, wherever possible, immediately beginning the first drafts of any briefs, discovery requests or responses, or other written materials. In this manner, the work product can be started with sufficient time left to repeatedly revise the work product so as to strive to put out the best effort on behalf of the client.
If you dig a grave for others, you might fall into it yourself.
Stated otherwise, what goes around, comes around. The practice of law as a whole is better served by attorneys who assist one another and provide heads ups to one another of potential pitfalls.
The Rules of Professional Conduct, the Code of Civility and the PBA Working Rules of Professionalism are replete with instructions on professional courtesy. Periodic review of, and adherence to, these rules of professional conduct and courtesy can only serve to improve one’s reputation and benefit the practice as a whole.
Obviously, efforts should always be made to treat others with the respect, kindness and courtesy we would hope for in return. As the Irish also warn, “Be kind to those you meet as you rise, you may pass them again as you fall.”
A light heart lives long.
As overwhelming as the practice of law can be, with files and clients on one’s mind essentially 24 hours a day and seven days a week, it is important to attempt to maintain a balance between one’s work life and one’s life outside of work. The stress of the practice can weigh heavily on the heart over the years.
Directing all of one’s energy towards the practice of law and neglecting other aspects of life outside of the practice can quickly lead to a burnout or a disillusionment with the profession.
The great Irish dramatist George Bernard Shaw was once quoted as saying, “A day’s work is a day’s work, neither more nor less, and the man who does it needs a day’s sustenance, a night’s repose and due leisure, whether he be a painter or ploughman.”
Periodically getting away from the practice of law by vacationing or otherwise for periods of rejuvenation and a rediscovery of one’s sense of self and personal interests will inevitably make life more enjoyable and provide for a fuller existence. An attorney with a more balanced life may have a better physical and mental status and thereby be in a position to better serve his or her clients.
As this old Irish proverb proves, quality time spent with family, reconnecting with old friends, exercising, or engaging in long lost hobbies may not only add life to one’s years but also years to one’s life. May you live as long as you want, and never want as long as you live.
Daniel E. Cummins, Esquire is a partner with the Scranton, Pennsylvania civil litigation firm of Foley, Cognetti, Comerford, Cimini & Cummins (foleycognettilaw.com). Attorney Cummins focuses his practice on insurance defense and coverage matters all across Northeastern Pennsylvania.
This article is reprinted here, with permission, from the March 10, 2008 issue of the Pennsylvania Law Weekly (c) 2008 Incisive Media US Properties, LLC. The title of the article in the Pennsylvania Law Weekly was "A Parade of Proverbs." Further duplication without permission is prohibited. All rights reserved. Please contact the author for permission to reprint or duplicate this article.
by
Daniel E. Cummins
With the St. Patrick’s Day celebration of all things Irish many famous Irish proverbs come to mind. As the Irish have noted, “Proverbs can not be contradicted.” Applying Irish proverbs to the practice of law can be enlightening for as Irish playwright John Millington Synge once noted, “There is no language like the Irish for soothing and quieting.”
A closed mouth—a wise head.
Although the Irish are known for the gift of gab, they also recognize that sometimes, the less said the better. This can be seen in the practice of law in judicial opinions where judges write concisely in an effort to streamline their opinion on the issues presented and avoid the possibility of inadvertently raising appellate issues.
Litigators may benefit from speaking concisely when addressing the court or a jury. Another Irish instruction is to “Say little, but say it well.” For example, it is often recommended that trial counsel keep objections to a minimum so as not to irk the trial judge or appear as if one is attempting to hide something of importance from a jury. As the Irish also say, “A silent mouth never did any harm.”
Conversely, another wise Irish proverb is that “A loud voice can make even the truth sound foolish.” Bombastic and arrogant presentations by attorneys cause the immediate perception that what is being said is either devoid of merit or, at best, suspect. Efforts at tempering one’s argument in accordance with the applicable law and avoiding personal attacks on opposing counsel will only serve to add credibility to the position being advocated.
A good beginning is half the work.
Whether it be the first words spoken to a judge or jury or the opening sentences of a brief, the beginning of one’s presentation can make or break a case. Overworked judges reading hundreds of briefs and bored jurors will appreciate the fresh notion of arguments that quickly get to the point and remain there.
In terms of oral presentation to a judge or jury, first impressions last forever. The crux of an argument or the theory of the case should comprise the first words out of an attorney’s mouth. A concise description of the dispute presented and why fairness dictates a ruling in favor of one’s client should be forcefully advocated from the get-go.
With brief writing, the typical generic opening paragraphs providing a boring statement of the facts should be eschewed in favor of a more pointed story comprised of the impact facts crucial to the issue presented followed by a concise recitation of the reasons why the court should rule in one’s client’s favor.
The goal of the initial paragraphs of a brief should be to grab the attention of the reader and direct it immediately to the position advocated. Simply put, interesting writing is persuasive writing.
If a rogue deceives me once, shame on him.
If he deceives me twice, shame on me.
Unfortunately, at various times in one’s practice, attorneys have to deal with another attorney that, to use the Irish vernacular, can be described no better terms than as a scoundrel.
When dealing with such attorneys for the first time, one may make a mistake or let their guard down providing an opportunity for the other attorney to take an untoward advantage in the case. But as Irish novelist James Joyce once noted, “Mistakes are the portals of discovery.” Once it is discovered through a mistake that opposing counsel can not be trusted to play by the rules or act with professional courtesy, one can take steps to prevent the situation from occurring again.
It is unfortunate that attorneys can not always rely upon the courts for relief from vexatious and dilatory tactics of a recalcitrant opposing counsel. While such weasel-like attorneys may treat opposing counsel in a reprehensible fashion, they are usually wise enough to appear before the court in the character of Eddie Haskell, the bully from the old Leave It To Beaver television show, who always took on an oily obsequious manner whenever faced with an authority figure in order to stay out of trouble.
Judges have to be even-handed when dealing with such disputes and may not always be in a position to properly address the tactics of such an opposing counsel. One should rest assured, however, that these types of attorneys routinely appear before the court on repetitive and petty issues such that their reputation for vexatiousness becomes engrained and, hopefully acknowledged and punished.
What this Irish proverb suggests is that an attorney should keep negative tactics of a particular opposing counsel in the memory bank and share such information with other attorneys so as to limit the ability of the attorney to engage in improper or unnecessary behavior.
As sung by legendary Irish rocker Bono of U2 in the song “Acrobat,” “Don’t let the bastards grind you down.”
Remember, even if you lose all, keep your good name,
for if you lose that, you are worthless.
An oft indicated principle or truth is that an attorney’s word is his bond. The Irish also proverbially quip that “A promise is a debt.” Developing a reputation for being good for one’s word and keeping promises is a virtue that can carry an attorney through his career above all else in terms of relations with the court and opposing counsel.
Without a doubt, a lawyer’s reputation precedes his interactions with all in the practice. When picking up new files, lawyers will typically first look to see who is on the other side and if that person is unknown, efforts will be made to ascertain the reputation of that attorney and how he or she handles cases.
Day in and day out, thoroughness and integrity in preparation and presentation along with punctuality and professional courtesy are the important building blocks of a solid reputation in the practice of law. Adherence to these positive characteristics will not only serve to enhance one’s stature among fellow members of the bar and the judiciary but may also allow one to secure an even more favorable result for one’s client.
If you lie down with dogs, you’ll rise with fleas.
Poor cases are often referred to in the practice as “dogs.” In developing one’s practice, while it may be understandable that an attorney may take on a few cases having difficult liability hurdles or questionable damages, it may be wise for counsel to avoid a proliferation of these cases such that one’s office turns into a dog pound.
Taking on too many troublesome cases can affect one’s reputation and the fleas from the dog cases might not only leech onto the attorney but may even possibly carry over and affect the value of the other more profitable cases in the office. As the great Irish poet William Butler Yeats once wrote, “But was there ever dog that praised his fleas.”
Accordingly, care should be taken in accepting new clients As the Irish also say, “If you put a silk dress on a goat, he is still a goat.” In other words, even the best of attorneys may not have the skills to put the shine on a tarnished case of little or no value. Attorneys may be wise to protect their reputations by refusing such cases in the first instance, or at the very least, referring them out for others to handle.
Never put off til tomorrow what you can do today.
As a catalyst for unnecessary stress, procrastination may be the worse enemy of an attorney. By continually putting off job tasks until the last moment, attorneys may be forced to scramble to complete a work product, such as a brief, and the end result is usually sub-par.
In keeping with the best possible service the client is entitled to by virtue of their entrusting their cause to an attorney, the better practice may be to look ahead to the following months deadlines and, wherever possible, immediately beginning the first drafts of any briefs, discovery requests or responses, or other written materials. In this manner, the work product can be started with sufficient time left to repeatedly revise the work product so as to strive to put out the best effort on behalf of the client.
If you dig a grave for others, you might fall into it yourself.
Stated otherwise, what goes around, comes around. The practice of law as a whole is better served by attorneys who assist one another and provide heads ups to one another of potential pitfalls.
The Rules of Professional Conduct, the Code of Civility and the PBA Working Rules of Professionalism are replete with instructions on professional courtesy. Periodic review of, and adherence to, these rules of professional conduct and courtesy can only serve to improve one’s reputation and benefit the practice as a whole.
Obviously, efforts should always be made to treat others with the respect, kindness and courtesy we would hope for in return. As the Irish also warn, “Be kind to those you meet as you rise, you may pass them again as you fall.”
A light heart lives long.
As overwhelming as the practice of law can be, with files and clients on one’s mind essentially 24 hours a day and seven days a week, it is important to attempt to maintain a balance between one’s work life and one’s life outside of work. The stress of the practice can weigh heavily on the heart over the years.
Directing all of one’s energy towards the practice of law and neglecting other aspects of life outside of the practice can quickly lead to a burnout or a disillusionment with the profession.
The great Irish dramatist George Bernard Shaw was once quoted as saying, “A day’s work is a day’s work, neither more nor less, and the man who does it needs a day’s sustenance, a night’s repose and due leisure, whether he be a painter or ploughman.”
Periodically getting away from the practice of law by vacationing or otherwise for periods of rejuvenation and a rediscovery of one’s sense of self and personal interests will inevitably make life more enjoyable and provide for a fuller existence. An attorney with a more balanced life may have a better physical and mental status and thereby be in a position to better serve his or her clients.
As this old Irish proverb proves, quality time spent with family, reconnecting with old friends, exercising, or engaging in long lost hobbies may not only add life to one’s years but also years to one’s life. May you live as long as you want, and never want as long as you live.
Daniel E. Cummins, Esquire is a partner with the Scranton, Pennsylvania civil litigation firm of Foley, Cognetti, Comerford, Cimini & Cummins (foleycognettilaw.com). Attorney Cummins focuses his practice on insurance defense and coverage matters all across Northeastern Pennsylvania.
This article is reprinted here, with permission, from the March 10, 2008 issue of the Pennsylvania Law Weekly (c) 2008 Incisive Media US Properties, LLC. The title of the article in the Pennsylvania Law Weekly was "A Parade of Proverbs." Further duplication without permission is prohibited. All rights reserved. Please contact the author for permission to reprint or duplicate this article.
Saturday, September 26, 2009
A Lesson in Civility At Depositions
In the case of Huggins v. Coatesville Area School Dist., 2009 WL 2973044, PICS Case No. 09-1575 (E.D. Pa. Sept. 16, 2009), Judge Pratter provides a thorough lesson in the requirement of civility between attorneys at depositions and carved out a unique sanction to address the vexatious conduct between the attorneys involved. (A copy of this opinion can be secured, for a small fee, from the Pennsylvania Law Weekly's Instant Case Service by calling 1-800-276-7427 and giving the PICS Case Number noted above).
Judge Pratter began his opinion with this comment, "When lawyers place a higher value on being heard than on being understood, when they trample on civility, or when their supposed devotion to their clients leads to stridency or worse, they undercut the belief in the law and in the legal profession. At a minimum, uncivil, abrasive, abusive, hostile or obstructive conduct by lawyers impedes the fundamental goal of resolving disputes rationally, peacefully, and efficiently. Because such conduct tends to delay, and can even deny, justice, a presiding judge may be called upon to determine whether one or more adversary has committed sanctionable conduct. Events in this case present the Court with that unwelcome task."
In addressing the issue presented the Court emphasized that the first Rule in the Pennsylvania Bar Association's “Working Rules for Professionalism” reads, as follows:
Treat with civility the lawyers, clients, opposing parties, the Court, and all the officials with whom we work. Professional courtesy is compatible with vigorous advocacy and zealous representation.
A reading of the case in its entirety serves as a good reminder of the parameters of civility and professionalism for depositions.
Interestingly the court in Huggins declined to award a monetary sanction in response to defense counsel's motion for sanctions. Rather, the court found it more appropriate to order plaintiffs’ counsel to attend a continuing legal education course in civility and professionalism. Plaintiff’s counsel was also ordered to sit down with defense counsel for an informal meal “to facilitate the repair of their professional relationship.” Both attorneys were ordered to submit a joint letter to the court thereafter to confirm their compliance with this order.
Judge Pratter began his opinion with this comment, "When lawyers place a higher value on being heard than on being understood, when they trample on civility, or when their supposed devotion to their clients leads to stridency or worse, they undercut the belief in the law and in the legal profession. At a minimum, uncivil, abrasive, abusive, hostile or obstructive conduct by lawyers impedes the fundamental goal of resolving disputes rationally, peacefully, and efficiently. Because such conduct tends to delay, and can even deny, justice, a presiding judge may be called upon to determine whether one or more adversary has committed sanctionable conduct. Events in this case present the Court with that unwelcome task."
In addressing the issue presented the Court emphasized that the first Rule in the Pennsylvania Bar Association's “Working Rules for Professionalism” reads, as follows:
Treat with civility the lawyers, clients, opposing parties, the Court, and all the officials with whom we work. Professional courtesy is compatible with vigorous advocacy and zealous representation.
A reading of the case in its entirety serves as a good reminder of the parameters of civility and professionalism for depositions.
Interestingly the court in Huggins declined to award a monetary sanction in response to defense counsel's motion for sanctions. Rather, the court found it more appropriate to order plaintiffs’ counsel to attend a continuing legal education course in civility and professionalism. Plaintiff’s counsel was also ordered to sit down with defense counsel for an informal meal “to facilitate the repair of their professional relationship.” Both attorneys were ordered to submit a joint letter to the court thereafter to confirm their compliance with this order.
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