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No doubt about it; litigators are tough and aggressive. Talk to litigators and they’ll be able to share more than one story with you about opposing counsel not agreeing to a minor extension or rescheduling a deposition. You may even hear a story or two about a heated e-mail exchange between counsel that may have crossed the line. In fact, these types of scenarios are more likely on the rise given the competitive market that litigators currently find themselves in. Recently, the increase of the win-at-all-costs mentality and overly aggressive tactics led the Florida Supreme Court, in a unanimous ruling, to revise the Oath of Attorney to include the following pledge:
To opposing parties and their counsel, I pledge fairness, integrity, and civility, not only in court but also in written and oral communications.
If you ask me, it’s about time. E-mail communication between attorneys is commonplace. Use of e-mail communication does provide an easy place for a litigator to hide while throwing stones at opposing counsel. There’s time to think of a snappy and snarky comeback. There’s also the distance to say things that might not be said when standing face-to-face with opposing counsel.
But I can’t help but think: “How embarrassing.” I’ve written before in this Inside View about my viewpoints on our profession. I do think it’s a noble profession and that it is worthy of respect. However, overly aggressive tactics and plain incivility breed contempt and lack of respect about the profession. If litigators can’t respect each other, how can we expect the public to respect our profession?
I don’t want my point to be mistaken (because I have been accused of “being too nice”). There is a time and place for aggressive tactics. Would I agree to allow a deposition to be rescheduled to fall outside of the discovery deadline and a week before trial when opposing counsel had months to conduct discovery? Clearly not. What I’m talking about is the overly aggressive and completely unprofessional tactics taken by some litigators to beat you and your client into submission using whatever tactics are available. It wouldn’t be beneath one of these litigators to refuse to reschedule a deposition due to the death in the family even though there are months left before the discovery deadline and trial date, or to send an e-mail using unprofessional language to make the point that you and your client need to settle the case or else.
In my opinion, a revision to the pledge is just the start. The Florida Bar has already indicated that it will teach professionalism and civility to new lawyers and that it will start testing students on professionalism and civility in the bar exam. We also need mentors to show attorneys that are new to the profession that a case can be won without using overly aggressive tactics, working within the bounds of the rule of law and acting with civility towards opposing counsel. After all, my mother always told me, “You catch more bees with honey than vinegar.”