GPSolo Magazine - October/November 2005
They make you want to quit the practice of law or, at the very least, to scream. Whether it’s an uncivil attorney or maybe an overbearing judge, every jurisdiction has one. You know what you would do if you were 11 years old and on the playground, but how do you deal with discourtesy within the rules of our profession?
It is best to keep in mind Sister Elizabeth Kenny’s admonishment, “He who angers you conquers you.” Instead of letting anger conquer you, redirect your efforts toward understanding what motivates your antagonist. Once you isolate this, you can tailor a solution that fits your personality. As Sun Tzu said in the Art of War, “Know your enemy, know yourself; in a hundred battles you will never be in peril.”
In my experience and from discussions with lawyers across the country, the most frequent motivation for injudicious behavior, by an attorney or a judge, is to control you. There may be other motivations, such as hiding incompetence or attempting to distract you from your goal, but incivility frequently is employed to gain the upper hand and, thus, control—of the trial outcome for opposing counsel, and of the courtroom itself for a judge.
When you are forced to deal with an attorney who refuses to play by the rules, the first emotion that usually arises is frustration that your opponent gets away with the behavior. The best antidote to this frustration is to maintain your perspective and your professionalism. Don’t sink to their level, or you’ll regret it later. This is particularly true if you understand that your opponent wants you to be angry. Under no circumstances let your anger show. How many times have we heard a parent admonish a child, “Ignore him, he’s just trying to get a rise out of you”? The rules we learned in kindergarten apply in adulthood. Understanding that counsel is trying to control your emotions should help you do so instead.
Of course, advice to ignore your opponent’s antics is easier to give than follow. Furthermore, you shouldn’t completely ignore such behavior. Although you do not want your opponent to know that the conduct bothers you, it is important to document the tactics in order to manage and gain eventual control over the offensive behavior. I was once in a deposition where the opposing counsel repeatedly shouted ( screamed is more accurate) at both the witness and me. When I asked that the record reflect that opposing counsel was shouting, his response was, “I have not raised my voice.” Fortunately, I had realized that the court reporter was using a tape recorder as a backup to the stenographic record, so I calmly responded by making the cassette tape an exhibit to the deposition. Suddenly, the level of decorum in the deposition was restored. I had not only controlled counsel’s behavior but also served notice that such behavior did not ruffle me.
Offensive conduct during a deposition can be easily controlled by videotaping the proceedings. Few things will influence an out-of-control attorney more than the fear that the judge will see that behavior. And videotaping does not have to be an expensive proposition. The federal rules and most state rules allow a deposition to be taken by video but do not specify that the video must be made by a professional, such as a court reporter. As long as your notice of deposition speci-fies that it will be videotaped, you can set up your own video camera and record the proceedings.
Of course, there are the tantrum telephone calls or, worse, phone calls that are followed by letters that “confirm” things that never occurred in the conversation. If you are in a state that allows recording of telephone conversations with one-party consent, there is no better way to control the situation than to record the phone calls. Even in a state where both parties must consent to recording, “automated attendant” telephone systems allow you to state in your outgoing message that “calls may be recorded and your continuation of the call constitutes your consent to recording.” You then have no need to surreptitiously record the call—your opponent’s “consent” gives you control over the situation and your opponent.
At some point, you may find it necessary to bring opposing counsel’s behavior to the attention of a judge or ethics committee. In most cases, you should not run to the authorities with a single instance of bad behavior by your opponent because you risk being perceived as thin-skinned. (In some instances, however, you may be ethically obligated to report a single instance of misconduct. See the sidebar “Ethical Responsibilities” on page 33.)
When you do find it necessary to report counsel’s behavior, your hand is strengthened if you have properly documented the situation; then you can show a pattern of ongoing misconduct rather than a one-time conflict between two advocates. Therefore, save the missives that opposing counsel faxes to you, along with any recordings from telephone conversations, ad hominem attacks in pleadings, deposition transcripts/videos, and relevant e-mails; also ensure that your filing system will allow you to easily retrieve the information. Before taking any official action, it’s also a good idea to talk with other members of the bar. Being able to show that other members of the bar have encountered similar unprofessional behavior by this lawyer reduces the likelihood that your complaint will be minimized or ignored as simply a clash of personalities between you and your opponent.
Because you are on equal footing with opposing counsel but not when dealing with a judge, your strategy for dealing with judicial incivility must differ. Standing up to a difficult judge can be more intimidating than standing up to an unprofessional colleague, but you actually may be at less of a disadvantage with the judge. Most dealings with judges are on the record and almost always in the presence of other witnesses. As a general rule, these factors help moderate intemperate behavior on the bench. But what about the judge who is professional but grandiose? A judge can be intimidating without crossing the line into improper behavior. Indeed, the whole purpose of seating a judge on a raised dais above everyone else in the courtroom is to create a grand aura of power.
Whether a judge is merely intimidating or intentionally aggressive, your solution is the same: Know the court rules, know the judge’s rules, and play by both. When the judge’s rules are in conflict with the court’s rules, you generally will need to assert yourself; if you know the rules, you will know when it’s safe to do so.
Often, a judge’s intimidating presence is simply an effort to control the pace of proceedings. Recently, as I was picking a jury for a civil trial, the trial judge told counsel, “It is my practice to pick eight jurors and allow all eight to serve; but if you want two to be alternates, I’ll let you do that.” By statute in our jurisdiction, however, a civil jury consists of 12 jurors unless the parties agree to a lesser number. According to how the jurors were ordered in the jury venire, those more favorable for my client were deeper in the pool; a 12-person jury gave me a fair chance at getting a few more favorable jurors in the box. So I pointed out the statute that specified 12 jurors. The judge agreed that was what the statute said but again mentioned “my practice. . . .” I stood my ground, and the judge amiably agreed that we would have 12 jurors.
I suspect that the reason the judge mentioned his “practice” was to enable a short jury selection and less expense to the court; had I agreed to his practice, I would have waived any error in selecting only eight jurors. The judge did nothing wrong in trying to direct me toward agreeing to eight jurors; had this been my first jury trial, I probably would have been intimidated into going along with it. Because I knew the rules, I could comfortably stand my ground. What would I have done if the judge refused to give me 12 jurors? I would have made sure that my objection was noted on the record and proceeded to trial, comfortable in the knowledge that my client now had two bites at the apple—we would certainly be awarded a new trial if the first one went badly. As in dealing with unprofessional attorneys, the key would be to make a good record of my objection.
Judges use an imposing presence to intimidate lawyers into not objecting all the time. Again, this usually is not improper, but when it is, the attorney must make the record. For example, the judge might tell a lawyer at sidebar, “Do you realize that all of these objections are alienating the jury?” Or the judge might say from the bench, “Counsel, I have already overruled that objection, let’s move on.” If you are satisfied that your objection is valid (e.g., you know the court’s rules), make your objection. Ask that the court note your continuing objection to the line of questioning, or the use of the particular document, or whatever happens to be the subject of your objection. This meets your need to preserve the record while addressing the judge’s desire to keep the trial moving forward. If the judge will not give you a continuing objection, however, you will need to steel yourself and keep repeating it. Each time the judge shows frustration, calmly remind the court of your obligation to make a record to protect your client’s rights, and of your renewed request for a continuing objection.
In rare instances, you may encounter a judge whose behavior clearly crosses the line. How you respond to injudicious treatment depends upon how it affects your client and the profession. If a judge throws a temper tantrum at a lawyer, the best thing for the client might be for the lawyer to apologize or silently grin and bear it. (The fraternity pledge scene from Animal House in which the pledge is spanked and says, “Thank you, sir, may I have another?” comes to mind.) A clear understanding of the judge’s rules (as opposed to the court’s rules) often may serve you best in this situation. I once stood openmouthed as opposing counsel was placed in handcuffs and charged with contempt because he repeatedly interrupted the judge. I knew from experience that this judge had a pet peeve about counsel who interrupted either the judge or opposing counsel. The judge had admonished my colleague at least three times not to interrupt, but the admonishment clearly had not registered. The judge threatened him with contempt if he did not stop interrupting, but he still did not get the message and, with the next interruption, found himself in handcuffs. The judge’s reaction could be called heavy-handed, but, to a certain extent, counsel brought it upon himself. First, he did not find out about the judge’s rules. Second, when he found himself in trouble, he tried to argue with the judge, denying that he was interrupting instead of apologizing or grinning and bearing it. And he interrupted the judge in the process!
Occasional incivility from a judge may have to be tolerated; if it is a routine matter, however, you can raise it with the appropriate governing body for the judge. (See the sidebar “Judgmental Judges” on page 34.) If the level of judicial hostility rises to the point that you believe it affects the fairness of your client’s claim for justice, make a motion for recusal. Generally, the judge’s dealings with your client’s case will not create a basis for recusal—if the judge concludes from the evidence that your client is not a particularly nice person, this is not a reason for recusal.
If the judge’s behavior toward your client gives rise to the appearance of impropriety or a lack of impartiality in the mind of a reasonable member of the public, however, you have good grounds for recusal. As in dealing with a wayward attorney, be sure to maintain good records to support the claim. There must be a compelling, well-documented argument for recusal because, in most jurisdictions, the motion to recuse must first be raised with the offending judge. A poorly supported motion to recuse creates a risk that the motion will be denied, leaving you stuck in front of a judge whom you have publicly accused of bias. Accordingly, the motion to recuse should be brought only if you are reasonably confident that an appellate court, reviewing the record under the appropriate standard of review (usually abuse of discretion), will conclude that the judge’s decision not to recuse was in error.
Dealing with the civility-challenged attorney or judge is rarely pleasant. Understanding the motivation behind the conduct will help you master your emotions so that you can deal with the behavior and obtain a better result for your client. If you lose your cool, however, you lose control—and your opponent will profit.
The rules of professional ethics for most jurisdictions require that an attorney who is aware of specific ethical breaches by lawyers and judges report those breaches. The ABA Model Rules of Professional Conduct specify that the report should be made to the “appropriate professional authority.” Individual jurisdictions may provide more specific guidance as to whom the report should be made. The lawyer’s failure to report a violation where it is required is itself an ethical violation that can lead to discipline against that attorney.
Whether the violation reaches a level that requires reporting varies by jurisdiction. For example, although ABA Model Rule of Professional Conduct 8.3 imposes the duty to report only when the ethics violation raises a “substantial question as to that lawyer’s honesty, trustworthiness, or fitness,” some states delete the word “substantial” from their version of Rule 8.3, thereby expanding the reporting requirement. Thus, when documenting an opponent’s or judge’s transgressions, take care to avoid one of your own.
Did the judge in your case actually cross the line? How do you go about reporting unethical actions by a judge? The answers to both questions are jurisdiction-specific. The following websites will provide information for a wide variety of circumstances.
- ABA Model Code of Judicial Conduct, www.abanet.org/cpr/mcjc/mcjc_home.html.
- ABA Center for Professional Responsibility, www.abanet.org/cpr/links.html, lists the judicial ethics rules for each state, with links where available.
- American Judicature Society, www.ajs.org/ethics/eth_conduct-orgs.asp, offers a directory of the organizations in each state that deal with complaints about judges; www.ajs.org/ethics/eth_fed-jud-conduct.asp describes the process for filing a complaint against a member of the federal judiciary.
- Code of Conduct for United States Judges, www.uscourts.gov/guide/vol2/ch1.html, lists and discusses the approved canons, with commentaries.
Andrew C. Simpson is a sole practitioner in the U.S. Virgin Islands concentrating in insurance defense, civil litigation, and appeals. He can be reached at firstname.lastname@example.org.