Zealous Advocacy, without falling into the trap of incivility
Going to court is not like participating in a tennis match. It's not like hitting a ball back and forth in front of the judge. In fact, bickering in front of judge may lead the judge to direct the parties and their attorneys to wait in the courtroom until later in the day, when others' cases are handled and the judge has time to listen patiently.
I prefer to watch carefully what the judge is focusing on. There is no need to respond in court to every statement or criticism by the other party or attorney -- only those that seem important to the judge. It's very easy for a party to let personal criticism and comments by the other side derail a discussion of what's important. Better to be prepared with facts, documents, and a clear theory of the case -- a truthful story of the progress of the case, the actions of the people involved, and a clear goal for the outcome. In my experience, judges are happy to see attorneys and litigants working diligently to reach agreement on whatever issues can be agreed, and to prepare to present facts, documents, testimony and other evidence on the contested (not-agreed) issues, so that the judge has the tools he or she needs to make a good decision.
Cook County Circuit Court (where I mainly practice in Chicago) has its own rules of 'Civility,' as follows.
- Kevin R. Johnson
cell 312-493-4241
www.divorce.nu
from the
Rules of the Circuit Court of Cook County:
Rule 13.11. Civility
(a) Decorum, Fairness and Administration
(i) A lawyer shall treat the court, opposing counsel and witnesses in a civil and courteous manner, not only in court, but also in all written and oral communications.
(ii) A lawyer shall cooperate in all phases of litigation that are not contested, reserving debate only for contested issues, in order that cases may be expeditiously resolved without incurring unnecessary expenses.
(iii) Lawyers shall not engage in any conduct that brings disorder or disruption to the courtroom. Lawyers shall instruct their clients and witnesses appearing in court of the proper conduct expected and required in court, and, to the best of their ability, prevent their clients and witnesses from acting inappropriately.
(iv) A lawyer shall not, even when called upon by a client to do so, abuse or engage in offensive conduct or do any acts that may contribute to hostility or acrimony between the parties or others related to the pending action.
(v) A lawyer shall advocate the legitimate interests of his client, but shall not exceed the bounds of zealous advocacy.
(vi) Lawyers shall not knowingly misrepresent, mischaracterize, misquote or miscite facts or authorities in any oral or written communication to the court.
(vii) A lawyer shall be prepared for all court appearances, negotiations, and other incidents of litigation.
(viii) A lawyer shall admonish each witness presented by the lawyer, who is not adverse, to testify truthfully.
(ix) A lawyer shall not interrupt the court or opposing counsel, except where necessary to make an effective objection.
(xi) A lawyer shall respect that truth and equity are best established in an atmosphere free of agitation.
(xiii) Lawyers shall stipulate to relevant matters if they are undisputed and if no good faith advocacy basis exists for not stipulating.
(xiv) When a draft order is to be prepared by counsel to reflect a court ruling, counsel shall draft an order that accurately and completely reflects the court's ruling. One counsel will promptly prepare and submit a proposed order to other counsel and attempt to reconcile any differences before the draft order is presented to the court.
(xv) Lawyers shall not engage in ex parte communications with a judge concerning a case pending before the court.
(xvi) Unless specifically permitted or invited by the court, lawyers shall not send copies of correspondence between counsel to the court. This does not include transmission of courtesy copies of pleadings to the court.
(xvii) Lawyers shall adhere to all express promises and to agreements with other counsel, whether oral or in writing.
(xviii) When lawyers reach an oral understanding on a proposed agreement or a stipulation and decide to commit it to writing, the drafter will endeavor in good faith to state the oral understanding accurately and completely. The drafter shall provide the other counsel with the opportunity for review of the writing. As drafts are exchanged between or among counsel, changes from prior drafts shall be identified in the draft or otherwise explicitly brought to the attention of the other counsel. Lawyers shall not include in a draft matters to which there has been no agreement without explicitly advising the other counsel in writing of the addition.
(b) Scheduling
(i) Lawyers shall not time the filing or service of motions, pleadings or discovery in any way that unfairly limits another party's opportunity to respond.
(ii) Lawyers shall, absent genuine urgency, consult with each other regarding scheduling matters in a good faith effort to avoid scheduling conflicts.
(iii) Lawyers shall endeavor to accommodate previously scheduled dates for hearings, depositions, meetings, conferences, vacations, seminars, or other functions that produce good faith calendar conflicts on the part of other counsel. If a lawyer has been given an accommodation because of a calendar conflict, the lawyer shall notify those who have accommodated the lawyer as soon as the conflict has been removed.
(iv) Lawyers shall agree to reasonable requests for extensions of time and for waiver of procedural formalities, provided that the clients' legitimate rights will not be materially or adversely affected.
(v) Counsel shall notify other counsel and, if appropriate, the court or other persons, at the earliest possible time when hearings, depositions, meetings, or conferences are to be canceled or postponed. Early notice avoids unnecessary travel and expense of counsel, and may enable the court to use the previously reserved time for other matters.
(c) Discovery Conduct
(iii) Lawyers shall take depositions only when actually needed to ascertain facts or information or to perpetuate testimony. Lawyers shall not take depositions for the purposes of harassment or to increase litigation expenses.
(iv) Lawyers shall not engage in any conduct during a deposition that would not be appropriate in the presence of a judge.
(v) Lawyers shall carefully focus document production requests so that they are limited to those documents they reasonably believe are necessary for the prosecution or defense of an action. Lawyers shall not design production requests that place an undue burden or expense on a party.
(vi) Lawyers shall respond to document requests reasonably and not strain to interpret the request in an artificially restrictive manner to avoid disclosure of relevant and non-privileged documents. Lawyers shall not produce documents in a manner designed to hide or obscure the existence of particular documents or information.
(vii) Lawyers shall carefully focus interrogatories so that they are limited to those matters they reasonably believe are necessary for the prosecution or defense of an action, and they shall not design them to place an undue burden or expense on a party.
(viii) Lawyers shall respond to interrogatories reasonably and completely, and shall not strain to interpret them in an artificially restrictive manner to avoid disclosure of relevant and non-privileged information.
(ix) Lawyers shall base their discovery objections on a good faith belief in their merit and will not object solely for the purpose of withholding or delaying the disclosure of relevant information.
(x) Lawyers shall make good faith efforts to resolve by agreement any objections to matters contained in pleadings and discovery requests and objections.
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