Civility Pays By John Gartman and Michael M. Rosen
It goes without saying that civility—courteous conduct by attorneys toward adversaries, colleagues, and clients—is an ethical and professional necessity.
But what may be less appreciated are the significant, concrete benefits that flow from adopting a civil approach. In terms of winning cases, saving money, and honing your litigation skills, civility pays.
We begin with a story: a while back, we won a significant victory for a large technology client in front of a Delaware jury. After rendering their verdict, the jurors kindly stuck around to be “interviewed” by the attorneys.
Asked their opinion of the lawyers’ performances during trial, the jurors pointed a finger at our counsel table and told us how impressed they were with our respectful treatment of our support staff, the opposing attorneys, and the judge and his staff. While our legal and factual arguments carried the day, no small part of our victory stemmed, according to the jury, from our civility in the courtroom.
But the courteous approach to litigation begins long before this, trickling down from the client pitch. We believe in the importance of outlining a civil strategy to our clients at the earliest stages, including our intention to avoid unnecessary disputes, to reject “take no prisoners” tactics, and instead to figure out and focus on what really matters in the case.
Some clients, of course, prefer a hyper-aggressive approach, and this is all the more reason to explain, early on, the serious demerits of such a strategy.
Once the client has signed on, this sense of civility must be communicated to the rest of your litigation team: be reasonable with opposing counsel, don’t pick unnecessary fights, and always weigh the expected benefit from resisting or obtaining discovery against its costs.
Younger associates should be dissuaded from applying some bad habits learned in law school—impassioned argument that becomes overheated rhetoric in briefs; issue-spotting that turns into a pursuit of the picayune—to real-world practice. Inevitably, simple discovery agreements between opposing parties, such as stipulations concerning expert discovery or document authentication, save the client significant time and money.
(The inverse is true, as well: if the judge believes the parties are presenting too many frivolous discovery disputes, she may appoint a special master to sort things out—and will impose on the parties the referee’s (steep) cost.)
Courtesy should also extend to building and sustaining a relationship between lead counsel on both sides. At the outset of the case, swap the impersonal email for a phone call, or better yet, an in-person visit; trade the keyboard for a sandwich. A friendly back-channel between the attorneys in charge can produce surprising benefits, including the decision not to file a questionable but costly motion.
But above all, keeping one eye firmly trained on the big picture ensures a good, efficient, and courteous result. It may feel good to win petty battles, but in high-stakes litigation, being right just isn’t good enough; instead, we need to be right on the things that matter.
So, in our view, civility isn’t just a nice concept. It’s a realistic, thoughtful strategy that yields material dividends to your colleagues, your client, and your case.
John Gartman is a principal, and Michael M. Rosen is an associate, at Fish & Richardson in San Diego.