March 29, 2011

Fostering Civility: A Professional Obligation

Remarks by

Judge Paul L. Friedman

United States District Court for the District of Columbia

American Bar Association Section of Public Contract Law

Friday, March 13, 1998
Annapolis, Maryland

What I want to focus on this afternoon is a matter that I believe all trial lawyers, litigators, those who practice before administrative agencies and boards, and judges and administrative law judges need urgently to focus on, the continuing decline of civility and professionalism in litigation and administrative proceedings. Although the "modern age" of the legal profession has witnessed progress in opening its doors wider to women and minorities and others who were previously excluded, this age has also opened its doors to the "Rambo litigator" which has spawned a generation of lawyers, too many of whom think they are more effective when they are more abrasive. I am here to tell you that neither my colleagues on the Bench nor I agree with that view. When it comes to issues of civility, professionalism and common courtesy, there has been an unfortunate sea change in the culture of the profession. We need to ask why it has happened and how it can be turned back.

There is less civility in society generally today, less courtesy, fewer manners. In the political arena and in public discourse, the rhetoric is harsher and the decibels are higher, and they too frequently overshadow the substance of debates. Two years ago, during a debate over the budget on the Senate floor, Senator Robert Byrd said it eloquently:

Mr. President, can't we rein in our tongues and lower our voices and speak to each other and about each other in a more civil fashion? I can disagree with another Senator. I have done so many times in this Chamber. I can state that he is mistaken in his facts; I can state that he is in error. I can do all these things without assaulting his character by calling him a liar, by saying that he lies. Have CIVILITY and common courtesy and reasonableness taken leave of this Chamber? Surely the individual vocabularies of Members of this body have not deteriorated to the point that we can only express ourselves in such crude and coarse and offensive language. The proverb tells us that "A fool uttereth all his mind: but a wise man keepeth it in till afterwards." Can we no longer engage in reasoned, even intense, partisan exchanges in the Senate without imputing evil motives to other Senators, without castigating the personal integrity of our colleagues? . . .

* * *

What can our young people think when they hear grown men in the premiere upper body among the world's legislatures casting such rash aspersions upon the President of the United States and upon other Senators? Political partisanship is to be expected in a legislative body -- we all engage in it -- but bitter personal attacks go beyond the pale of respectable propriety.FN1

Unfortunately, it often seems, the situation has gotten worse, not better. But trial lawyers and litigators -- like politicians -- should heed the words of Senator Byrd. "Hard- ball" litigation tactics, "scorched earth" strategies, and so-called "take no prisoners" litigators are in vogue. We see it in the courtroom and before boards of contract appeals and other administrative agencies -- where I believe judges and administrative law judges have an obligation to step in and say it is unacceptable; it will not be tolerated. We see it even more frequently in depositions, a forum in which there is no referee, no umpire, no judge to call a halt to the ad hominem attacks, the harassment, the abuse that too many lawyers today think is required in the service of their clients. But just as Senator Byrd said in a different context, civility, common courtesy and reasonableness should still be the hallmarks of the once noble profession we call the practice of law. Lawyers need to remind themselves and teach their juniors new to the profession that personal attacks, name-calling and personal invective are beyond the pale.

How bad has the situation gotten at depositions? Let me give you just two examples. In a recent article, Judge Marvin Aspen quoted from a transcript of a deposition in Madison, Wisconsin. After a lawyer had requested that his adversary provide a copy of a document he wanted to use in questioning a witness, the following took place:

Mr. V:Please don't throw it at me.

Mr. A: Take it.

Mr. V: Don't throw it at me.

Mr. A:Don't be a child, Mr. V. You look like a slob the way you're dressed, but you don't have to act like a slob.

* * *

Mr. V: Stop yelling at me. Let's get on with it.

Mr. A:Have you not? You deny I have given you a copy of every document?

Mr. V: You just refused to give it to me.

Mr. A: Do you deny it?

Mr. V: Eventually you threw it at me.

Mr. A: Oh, Mr V, you're about as childish as you can get. You look like a slob, you act like a slob.

Mr. V: Keep it up.

Mr. A: Your mind belongs in the gutter. FN2

An even more infamous example, widely quoted in the press, was a deposition taken in Texas in connection with a Delaware securities case. The conduct of the lawyer in question was later described by the Supreme Court of Delaware as representing "an astonishing lack of professionalism and civility that . . . is . . . a lesson for the future -- a lesson of conduct not to be tolerated or repeated." FN3 The Court further suggested that this Texas lawyer would no longer be welcome in the courts of Delaware. The deposition went like this:

Witness:I vaguely recall [the letter]. . . . I think I did read it, probably.

Lawyer A:Do you have any idea why Mr. X was calling that material to your attention?

Lawyer B:Don't answer that.

How would he know what was going on in

Mr. X's mind? Don't answer it. Go on to your next question.

Lawyer A:No, Joe ---

Lawyer B:He's not going to answer that. Certify it. I'm going to shut it down if you don't go to your next question.

Lawyer A:No. Joe, Joe --

Lawyer B:Don't "Joe" me, asshole. You can ask some questions, but get off of that. I'm tired of you. You could gag a maggot off a meat wagon. Now, we've helped you every way we can.

Lawyer A:Let's just take it easy.

Lawyer B:No, we're not going to take it easy. Get on with this.

Lawyer A:We will go on to the next question.

Lawyer B:Do it now.

Lawyer A:We will go on to the next question. We're not trying to excite anyone.

Lawyer B:Come on. Quit talking. Ask the questions. Nobody wants to socialize with you.

Lawyer A:I'm not trying to socialize. We'll go on to another question. We're continuing the deposition.

Lawyer B:Well, go on and shut up.

* * *

Lawyer B:You don't know what you're doing. Obviously someone wrote out a long outline of stuff for you to ask. You have no concept of what you're doing. Now, I've tolerated you for three hours. If you've got another question, get on with it. This is going to stop one hour from now, period. Go.

Lawyer A:Are you finished?

Lawyer B:Come on, . . . move it.

Lawyer A:I don't need this kind of abuse.

Lawyer B:Then just ask the next question.

* * *

Lawyer A:I'm trying to move forward with it.

Lawyer B:You understand me? Don't talk to this witness except by questions. Do you hear me?

Lawyer A:I heard you fine.

Lawyer B:You fee makers think you can come here and sit in somebody's office, get your meter running, get your full day's fee by asking stupid questions. Let's go with it. FN4

While these two depositions may be extreme examples, similar abusive conduct in discovery unfortunately is commonplace today. But these are not legitimate ways for a lawyer to act in pursuit of a client's interest. This kind of name-calling and abuse of the discovery process is not permissible just because it may not be an express violation of a state's Code of Professional Responsibility or Rules of Professional Conduct. You in the Bar, and we on the Bench, need to take steps now to reverse the trend or our profession will be held in even lower repute than it already is. We must ask ourselves whether we want lawyers to be viewed as rational, reasoned, analytic dispute-resolvers, or only as "hired guns," doing the bidding of their clients without regard to ethics, morality, independent judgment or common courtesy.

Before going on the Bench, I chaired our Court's Civil Justice Reform Act Advisory Group, a committee appointed by the District Court and charged by Congress with studying the causes of delay and excessive cost in civil litigation in our Court. We interviewed all the judges and magistrate judges, sent surveys to 5,000 attorneys who had appeared in the District Court and studied data on backlogs and delay. We identified improper and abusive discovery practices as one of the principal causes of both delay and excessive costs. We took note of an increasing tendency for overbroad document production requests and objectionable deposition conduct that lengthens depositions, frustrates the successful completion of depositions and leads to satellite litigation to resolve discovery disputes or consider sanctions. We learned that discovery is often expensive, abusive and too broad for the needs of the particular case. We noted that incivility among lawyers, particularly at depositions, is on the rise. We recommended that the Court's Advisory Committee on Local Rules and the District of Columbia Bar should study and review the problem of deposition and discovery abuse and "consider ways of controlling misbehavior and eliminating conduct falling short of basic standards of civility." FN5

The United States Court of Appeals for the Seventh Circuit was the first Circuit to adopt civility standards for professional conduct after considering a study and recommendations by a committee of lawyers and judges chaired by Judge Aspen. The committee found the kind of abusive and unethical deposition conduct I just cited, as well as examples of bad faith arguments, misrepresentations of fact and law, lack of candor and some cases of outright lying both in and out of court. FN6 The standards offered by the Seventh Circuit seek to balance the vigorous representation of clients with the lawyer's obligations as an officer of the court to the administration of justice. FN7 Similar guidelines have recently been proposed by the ABA Litigation Section FN8 and adopted by the United States District Court for the District of Maryland. FN9 Specific rules of court providing for sanctions for abusive discovery conduct have been adopted by the Southern District of Florida and the District of Colorado, among others. FN10

Following the lead of the Seventh Circuit, and at the suggestion of our Civil Justice Reform Act Advisory Group, the District of Columbia Bar created a Task Force on Civility in the Profession. In response to a survey sent by the Task Force to the judges of the U.S. District Court for the District of Columbia, approximately three-quarters of my colleagues said they believe there is a significant problem of incivility in the legal profession, and most of them think the problem reflects a trend in society at large. Eighty percent believe there is less civility in the profession today than there was even six or seven years ago. Most say that incivility occurs most frequently in the discovery setting, where no judicial officer is present. Many believe it is affirmatively used as a litigation tactic -- one, they add, that they do not believe is the least bit effective. Some of them see overzealous advocacy being driven by a "win at any cost" mentality that is often client-driven, with lawyers today simply being unwilling to tell a client no. FN11

After much study and input from the Bench and the Bar, the Task Force proposed voluntary standards that have been adopted by the Board of Governors of the District of Columbia Bar. They include the following principles by which litigating lawyers should govern their conduct:

1.Except within the bounds of fair argument in pleadings or in formal proceedings, we will not reflect in our conduct, attitude, or demeanor our clients' ill feelings, if any, toward other participants in the legal process.

2.We will not, even if called upon by a client to do so, engage in offensive conduct directed toward other participants in the legal process. Except within the bounds of fair argument in pleadings or in formal proceedings, we will abstain from disparaging personal remarks or acrimony toward such participants and treat adverse witnesses and parties with fair consideration. We will encourage our clients to act civilly and respectfully to all participants in the legal process.

3.We will not bring the profession into disrepute by making unfounded allegations of impropriety or making ad hominem attacks. . . .

4.We will not use any form of discovery or discovery scheduling for harassment, unjustified delay, to increase litigation expenses, or any other improper purpose.

5.We will not engage in any conduct during a deposition that would not be appropriate if a judge were present. Accordingly, we will not obstruct questioning during a deposition or object to deposition questions, unless permitted by the applicable rules to preserve an objection or privilege and we will ask only those questions we reasonably believe are appropriate in discovery under the applicable rules.

6.We will base our discovery objections on a good faith belief in their merit. We will not object solely for the purpose of withholding or delaying the disclosure of properly discoverable information.

7.During discovery, we will not engage in acrimonious conversations or exchanges with opposing counsel, parties, or witnesses. We will advise our clients to conduct themselves in accordance with these provisions. We will not engage in undignified or discourteous conduct which degrades the legal proceeding.

8.We will not knowingly misrepresent, mischaracterize or miscite facts or authorities. FN12

Why are such civility standards being proposed now? What has changed about our profession that has created what so many believe to be a very significant problem? First, as I have already suggested, society has changed. There is less civility in Congress, on television, certainly in the sports world, in the media and in public discourse generally. Many lawyers have grown up in this environment, and they do and will practice what they see all around them unless they are told by more experienced lawyers that it is wrong. This, of course, only works if the more experienced lawyers have not themselves abandoned traditional notions of civility and professionalism.

Second, many lawyers see the legal profession now at least as much as a money-making venture as it is a calling dedicated to high standards of professionalism and service. There are pressures on lawyers to get clients, to massage clients, and to keep clients in an environment where once loyal clients are now shopping around for lawyers -- variously looking for the cheapest, the toughest, or the most famous. There is less institutional loyalty on the part of clients and more of a "what have you done for me lately" attitude. In this environment, many clients have ever-increasing expectations of their lawyers and expect hired gun gladiators to do their bidding, or they will find others. Sadly, the culture, the values, the ethics of the profession have changed.

The same is true within law firms. There is more pressure on lawyers -- partners and associates alike -- to bill hours, to bring in business, to get results, some would suggest, at whatever the cost. The struggle to survive and the struggle to succeed have begun seriously to undermine professionalism and civility. The associates know there is less chance than ever before to make partner, and they must impress their seniors in some way. Some perceive that being tenacious at depositions and in dealing with opposing counsel is one way to make that impression. The fact that so many of them have never tried a case, will not try the case in which they are taking the depositions and may never even have been taught the real purpose of a deposition all contribute to this. It is difficult for less-experienced lawyers to think of themselves as servants of the law, officers of the court, members of a noble profession when all they hear about is billing hours, getting clients and keeping them happy -- and winning at any cost.

The mentoring process no longer exists the way it used to. Because sole and small firm practitioners are hungry for business and the associate in the big firm is judged by the number of billable hours, there is no time to follow the "mentor" around from courtroom to courtroom and to depositions to learn by example. And to the extent examples are provided today, they may be the wrong ones. Mentoring has declined both because of time constraints and other pressures on more experienced lawyers and because their values and standards of conduct are changing. As Judge Aspen has remarked: "The culture of the older lawyer mentoring the younger on the etiquette of the profession has almost disappeared. . . . [T]here is little effort among older lawyers to pass down a tradition of civility to young lawyers." FN13

I have seen and heard about similar uncivil conduct by government lawyers as well. While not driven by the same things that motivate their counterparts in the private sector or the private clients of those private sector lawyers, government lawyers may be feeling the impact of the same changes in society and the legal profession that I have discussed -- an increasing lack of civility, and the premium placed on aggressiveness, intransigence and hard-ball tactics for their own sake. Or perhaps some are motivated by a sense that government lawyers don't have to play by the same rules as private lawyers do because they represent the power and the righteousness (some might say self-righteousness) of the government. The fact is, however, that most judges I know hold the government to a higher standard, not a lower one, because the government lawyer represents the public interest, not a private one.

As Justice Sutherland said in language now etched on the walls of the Department of Justice:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor -- indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. FN14

To give you an idea of the conduct that generated that admonition, let me quote further from the Supreme Court's opinion in that case, Berger v. United States:

That the United States prosecuting attorney overstepped the bounds of that propriety and fairness which should characterize the conduct of such an officer in the prosecution of a criminal offense is clearly shown by the record. He was guilty of misstating the facts in his cross-examination of witnesses; of putting into the mouths of such witnesses things which they had not said; of suggesting by his questions that statements had been made to him personally out of court, in respect of which no proof was offered; of pretending to understand that a witness had said something which he had not said and persistently cross-examining the witness upon that basis; of assuming prejudicial facts not in evidence; of bullying and arguing with witnesses; and in general, of conducting himself in a thoroughly indecorous and improper manner. FN15

Lest there be any doubt, such conduct is as unacceptable today as it was in 1935.

The same principles most assuredly apply to agency counsel as well. As former Chief Judge Mikva of the United States Court of Appeals for the D.C. Circuit said in a FERC case, in an opinion in which he was joined by Judges Silberman and Randolph:

. . . "I don't think we had to do that," counsel said in response to a suggestion that a phone call to opposing counsel might have put an end to the case; "the burden is on him." When a member of the panel submitted that counsel for a public agency has special obligations, FERC's counsel replied that "I think we can agree to disagree on that point." At the close of oral argument, FERC's counsel summed up his position: "All I can say is that I think you're holding us to a different standard here."

The notion that government lawyers have obligations beyond those of private lawyers did not originate in oral argument in this case. A government lawyer "is the representative not of an ordinary party to a controversy," the Supreme Court said long ago in a statement chiseled on the walls of the Justice Department, "but of a sovereignty whose obligation . . . is not that it shall win a case, but that justice shall be done." The Supreme Court was speaking of government prosecutors in Berger, but no one, to our knowledge (at least prior to oral argument), has suggested that the principle does not apply with equal force to the government's civil lawyers. In fact, the American Bar Association's Model Code of Professional Responsibility expressly holds a "government lawyer in a civil action or administrative proceeding" to higher standards than private lawyers, stating that government lawyers have "the responsibility to seek justice," and "should refrain from instituting or continuing litigation that is obviously unfair."

* * *

We stress, to conclude, that we are concerned not so much with the failings of FERC's counsel in this case, but with the underlying view of a government lawyer's responsibilities that counsel revealed at oral argument. We find it astonishing that an attorney for a federal administrative agency could so unblushingly deny that a government lawyer has obligations that might sometimes trump the desire to pound an opponent into submission. FN16

I agree completely. The government is not an ordinary litigant, and government lawyers are not ordinary lawyers. They should be expected to more carefully scrutinize the cases they bring and the positions they defend; they have a duty of candor to be even more forthcoming with adverse information than lawyers in the private sector. Because their interest is the public's interest and the fair administration of justice, government lawyers have a higher obligation, a public trust if you will, that should motivate them to fulfill the highest traditions of the legal profession, not the lowest common denominator.

Perhaps things were different in both the public and private sectors when there was a smaller bar and everyone in the legal community knew each other. The late Sidney Sachs, one of the great trial lawyers and great personalities of the District of Columbia Bar, once told me: "Always remember, the lawyer on the other side of the case is not your enemy. His client and your client may view themselves as enemies. But you and he are not enemies. You are friends, or, in time, you may become friends." Good advice, too little remembered, too infrequently given today. The Bar in those days was more collegial, more civil, in part because it was smaller and lawyers knew that today's opponent might well be tomorrow's ally.

The days of the small, insular legal community where everyone knew each other and all practitioners shared common experiences, common backgrounds and a ceratin notion of civility has now disappeared. Instead, we have a much larger, more diverse professional community with lawyers of different values and experiences, different genders, and different ethnic and racial backgrounds. Happily, the legal profession is no longer an all boys club where the terms civil and gentlemanly are synonymous. Civility today recognizes the importance of inclusiveness and the need to reverse gender, racial and ethnic biases that historically existed in the courtroom and the deposition room as much as elsewhere in society. FN17 As the profession has become more diverse, it can and should recognize a broader idea of civility. As Justice Anthony Kennedy has put it, "Civility has deep roots in the idea of respect for the individual . . . respect for the dignity and worth of a fellow human being." FN18

While most judges and many lawyers share these ideals, others criticize the focus on civility in three fundamental ways. First, the criticism goes, there is no real problem. Occasional abuses can be dealt with by disciplinary bodies through the Rules of Professional Conduct if they rise to the level of an ethical violation. Second, civility standards interfere with the obligation of a lawyer to represent a client zealously and loyally. And third, civility standards and aspirational principles that have no real teeth serve no purpose. Like apple pie and motherhood, everyone is for them but they will have no impact.

I disagree with all three assertions. First, there is a genuine problem. As I have described, and as the D.C. Bar Task Force and others have demonstrated, the legal culture has changed for the worse. The environment in which lawyers practice today is different; there are numerous forces at work that have a negative impact on civility and, more fundamentally, undermine lawyers' understanding that they can serve their clients while also still serving as officers of the court.

As for zealous advocacy, lawyers can be advocates for their clients without assuming their clients' personal antipathies and tactics. Lawyers must be more than hired guns. Lawyers sell their skills, their seasoned judgment, their advice. They sell their ability to reason, to engage in rational discourse, to present analytically sound arguments. They also sell their reputations and their credibility with the court. To the extent those commodities are squandered by selling their soul to one client, they are less valuable to the next client. Once sullied, reputation and credibility cannot easily be recaptured. As Justice Sandra Day O'Connor recently remarked to the American Bar Association:

The common objection to civility is that it will somehow disserve the client. I see it differently. In my view, incivility disserves the client because it wastes time and energy -- time that is billed to the client at hundreds of dollars an hour, and energy that is better spent working on the case than working over the opponent. I suspect that, if opposing lawyers were to calculate for their clients how much they could save by foregoing what has been called "Rambo-style" litigation (in money and frustration), many clients, although not all, would pass on the pyrotechnics and happily pocket the difference. It is not always the case that the least contentious lawyer loses. It is enough for the ideas and positions of the parties to clash; the lawyers don't have to. FN19

Finally, focusing on civility by adopting principles and standards, even unenforceable ones, serves a very useful purpose. Indeed, the early Canons of Professional Ethics and the Ethical Considerations that formerly accompanied the mandatory Disciplinary Rules were understood as necessary aspirational guidelines for the profession, while the Disciplinary Rules -- now the Rules of Professional Conduct -- represented the bare minimum standards of conduct. FN20 Members of the legal profession -- and certainly judges -- have always understood that more than the bare minimum was required of lawyers. I believe that by thinking and talking more about civility, and ultimately by adopting civility standards, we on the Bench and in the Bar may persuade, teach and sensitize each other to act more civilly in litigation and help restore to the profession a semblance of its noblest spirit.

Admittedly, changing the culture takes time. Behavior that may have become acceptable in recent years must be abandoned, and professionalism and civility must again become second nature. Bar associations, law firms and government agencies, law schools and judges all can play a role in getting our profession back on track. Lawyers will serve the justice system better by doing so and, in the long run, they will serve their clients better too.

In the end, they will also better serve themselves as professionals and as people. For my part, I believe that judges should not shrink from dealing aggressively with the problem. We must not be reluctant to use the tools we have to address incivility and lack of professionalism much more frequently than we do.

Let me give you a few examples of some steps I personally have taken. In one case I appointed a "babysitter" for the lawyers -- a special master to preside over a deposition that had become so contentious that the lawyers could not be trusted to proceed alone, with an order that the parties would pay the special master at his normal hourly rate and that he would determine how to apportion the costs. FN21 In another case, I imposed a $2,000 sanction on counsel -- not the client -- for "abuse of the discovery process in an effort to delay resolution of [certain discovery] matters" beyond the discovery deadline and in direct violation of the Court's orders regarding the manner for bringing discovery disputes to the attention of the Court. FN22

In yet another recent case, I noted that the filings of counsel for both parties contained

scurrilous personal attacks, name-calling and petty arguments which demean the legal profession. The lack of civility and ad hominem attacks by counsel on both sides of this case is breathtaking. In addition, defendants' counterclaims, which threaten to delay the immediate resolution of [the] case . . . appear to be mostly frivolous and designed primarily to harass.

The Court is troubled by the way in which counsel have decided to conduct themselves and, in particular, the way in which they have entrenched themselves in a mire of seemingly petty arguments that waste the Court's time and resources. The Court therefore highly encourages counsel to consider the option of resolving their rancorous differences instead of using the Court's time to decide the outstanding issues in this case -- a decision that would require a hearing at which counsel for both sides would be represented by separate counsel, as the Court would put both lawyers under oath to develop the true facts concerning who said what to whom, the accuracy and legitimacy of the documents submitted in this case and the accuracy of oral and written representations made to the Court, a spectacle that might well result in the Court levying sanctions personally against counsel as well as against their clients. FN23

Finally, in a case where counsel had inundated both the magistrate judge and myself with a "barrage[] [of] motions that seemingly articulate each and every spat over which counsel find it necessary to bicker," FN24 I began my order with the following quote from Aesop's Fables:

There was once a young Shepherd Boy who tended his sheep at the foot of a mountain near a dark forest. It was rather lonely for him all day, so he thought upon a plan by which he could get a little company and some excitement. He rushed down towards the village calling out "Wolf, Wolf," and the villagers came out to meet him, and some of them stopped with him for a considerable time. This pleased the boy so much that a few days afterwards he tried the same trick, and again the villagers came to his help. But shortly after this a Wolf actually did come out from the forest, and began to worry the sheep, and the boy, of course, cried out "Wolf, Wolf," still louder than before. But this time . . . nobody stirred to come to his help. FN25

It is difficult to live a life of integrity, to be civil, decorous, professional and courteous with so many forces pulling in other directions. But by discussing these issues in the law schools and in the Bar, with the strong hand of the courts setting the moral tone, and by making constant efforts to remind ourselves and each other that every lawyer still is an officer of the court who has been given the privilege -- not the right -- to practice this noble profession, we may yet stem the tide. Let us hope so. As Chief Justice Burger said a quarter of a century ago:

Without civility no private discussion, no public debate, no legislative process, no political campaign, no trial of any case, can serve its purpose or achieve its objective. When men shout and shriek or call names, we witness the end of rational thought process if not the beginning of blows and combat.

* * *

With all deference, I submit that lawyers who know how to think but have not learned how to behave are a menace and a liability, not an asset, to the administration of justice.

I suggest the necessity for civility is relevant to lawyers because they are the living exemplars -- and thus teachers -- every day in every case and in every court and their worst conduct will be emulated perhaps more readily than their best. When a lawyer flouts the standards of professional conduct once, his conduct will be echoed in multiples and for years to come and long after he leaves the scene. FN26

1 141 Cong. Rec. S 18964-01 (Dec. 20, 1995) (statement of Sen. Byrd).Back

2 Marvin E. Aspen, The Search For Renewed Civility In Litigation, 28 Val. U. L. Rev. 513, 513-14 (1994).Back

3 Paramount Communications, Inc. v. QVC Network, Inc., 637 A.2d 34, 52 (Del. 1994).Back

4 Paramount Communications, Inc. v. QVC Network, Inc., supra, 637 A.2d at 53-54. Back

5 Final Report of the Civil Justice Reform Act Advisory Group for the United States District Court for the District of Columbia xiv, 28-29, 55 (Aug. 1993). Back

6 Final Report of the Committee on Civility of the Seventh Federal Judicial Circuit, 143 F.R.D. 441, 445-47 (Dec. 1992). Back

7 Id. at 447-52. Back

8 Guidelines for Conduct of the Section of Litigation of the American Bar Association, Litigation News, Dec./Jan. 1996, at 6-7. Back

9 United States District Court for the District of Maryland, Discovery Guidelines (adopted Sept. 11, 1995); see also Dondi Properties Corp. v. Commerce Savings and Loan Assoc., 121 F.R.D. 284 (N.D. Tex. 1988) (establishing standards of litigation conduct to be observed in civil actions in U.S. District Court for the Northern District of Texas). Back

10 United States District Court for the Southern District of Florida, Local Rule 30.1 (adopted 1996); United States District Court for the District of Colorado, Local Rule 30.1C (adopted 1996). Back

11 Final Report, D.C. Bar Task Force On Civility In The Profession 12-13 (June 18, 1996). Back

12 D.C. Bar Voluntary Standards for Civility in Professional Conduct (June 18, 1996; amended March 17, 1997). Back

13 Marvin E. Aspen, The Search For Renewed Civility In Litigation, 28 Val. U. L. Rev. 513, 518 (1994). Back

14 Berger v. United States, 295 U.S. 78, 88 (1935). Back

15 Id. at 84. Back

16 Freeport-McMoran Oil & Gas Co. v. Federal Energy Regulatory Comm'n., 962 F.2d 45 (D.C. Cir. 1991) (citations omitted).Back

17 See e.g., The Gender Race, and Ethnic Bias Task Force Project in the D. C. Circuit, Vol. I at IV-44 - 49 (1995). Back

18 Justice Anthony M. Kennedy, Address to the 1997 ABA Annual Meeting (Summer 1997, San Francisco, Calif.). Back

19 Sandra Day O'Connor, "Civil Justice System Improvements," Remarks Before the American Bar Association, at 5-6 (Dec. 14, 1993). Back

20 Code of Professional Responsibility, Preliminary Statement (ABA 1977). Back

21 Teferra v. Marriot Int'l, Inc., Civil Action No. 96-1626 (D.D.C. April 25, 1997). Back

22 Harris v. Georgetown University, Civil Action No. 95-0032 at 2 (D.D.C. Dec. 24, 1996). Back

23 Marina Management Services, Inc. v. Vessel My Girls, Civil Action No. 97- 0423 at 2 (D.D.C. Feb. 9, 1998) Back

24 Moore v. National Children's Center, Civil Action No. 96-0118 at 1-2 (D.D.C. May 9, 1997) Back

25 Id. at 1. Back

26 Warren E. Burger, The Necessity For Civility, 52 F.R.D. 211 (1971). Back