We lawyers have to sit through hours of sanctimonious crap about professionalism. Crap not because professionalism is crap. Crap because what we’re sitting through is generally a lot of theoretical hand-wringing and brow-furrowing by Leading Lights of the Bar — for whom professionalism means kissing the right behinds over G&T’s at The Palm — and judges and magistrates who would prefer it if we all played better together but are so afraid of appearing partisan that they won’t admonish obviously unprofessional behavior.
Memo to judges and magistrates: There would be a lot more civil behavior in the legal profession if you increased even slightly your level of knuckle-rapping. When one party argues the law and the other presents briefs full of underlined, italicized, bolded, legally-irrelevant ad hominem arguments, say something. You can even rule in favor of the font-abusing jerks — if, counterfactually, they were ever right — but damn, lawyers are not going to get any more civil unless you are willing to call them on their incivility. In real time, too, not theoretically at later hand-wringing professionalism lectures.
Of course, judges and magistrates are not generally party to lawyers’ emails, so we’re sort of on our own there. In that medium, to steal a phrase from my step-brother Duncan, we* are often like a classroom full of five-year-olds with guns and liquor. We recently endured over a month of bold/italicized emails from opposing counsel to schedule a single deposition, the highlight of which was the accusation that we were “playing games” by not disclosing our witnesses a week before the deadline.
In every state, there are rules governing lawyer behavior, for example, in Colorado we have the Colorado Rules of Professional Conduct. These rules tell you helpful things like don’t steal money from your clients or disclose their secrets. Things that we’d never figure out if they were not written down for us.** The CRPC don’t teach you the important stuff, though. So herewith the ARPC: Amy’s Rules of Professional Conduct.
1. Don’t be a jerk.***
2. Respect, or at least act respectfully toward, other lawyers. Older lawyers in fact know more than you do. Younger lawyers are learning how to behave; if you act like a jerk to them, you contribute to the replication of jerk lawyer culture.**** And most important, (she says hopefully) acting like a jerk to opposing counsel in court just makes you look like a jerk. And desperate. And wrong.
3. Don’t be sarcastic, at least not outside your own litigation team. That means, when your OC claims he couldn’t find ten names in a searchable 300-page document over the course of almost two years, do not send an email that reads:
I have one question: does anyone in your 1,200-laywer firm know how to use the “Control-F” function in a pdf document? Because if you had such advanced technical capabilities, you would have discovered those ten people using that complex combination of two of the keys found on all modern computer keyboards sometime in the 18 months since you received our disclosures. Just sayin’.
It was fun to write, but — on sober reflection — I should not have sent it. At least not to OC — that’s what the blog is for. This is clearly the ARPC rule that I violate most frequently. For example, I also once sent an email to an OC the entire content of which was, “Oh, snap!” Luckily, that OC has a sense of humor, so the offense was not as grave. It was a violation, nonetheless.
4. Italics are for case names. Bold text is for celebrity names in gossip columns. Neither font is appropriate as a written representation of raising your voice in briefs and correspondence. Bolding and italicizing the same chunk of text makes you look desperate. And wrong.
5. There is such a thing as deadline karma. Say “yes” to at least the first few requests for extensions if they do not actually imperil your client’s interests. Someday, you’ll need an extension, maybe even in an unrelated case. If you gratuitously refuse a reasonable extension, deadline karma will kick your ass.
6. Learn synonyms for the world “lie.” The judge doesn’t want to hear that your OC is lying, even when he is. In one of our cases, OC asserted to the judge that his client was unfamiliar with the way an expert took measurements. We produced a photo of OC’s client watching the expert take measurements. The judge was completely uninterested in photographic evidence of OC’s lie. Instead of “lie,” I have learned to say, “that argument is incorrect,” or “that assertion is inaccurate.” Same idea; less emotion.
7. Do not attempt to bond with a party or lawyer who is different from you by telling stories about relatives you imagine they have something in common with. If your client violated the ADA, I don’t want to hear about your aunt who uses a wheelchair.***** If you’re a sexist windbag, I don’t care that your daughter just graduated from law school. In a fair housing case, please don’t tell me your son dated an African-American woman. All of these examples are true, several of them repeatedly.
8. Do not send aggressive or offensive correspondence on Friday evening. I know you’ll want to do this to get your desk clear for the weekend. Right? That’s why you want to do it, right? Not that you’d ever think about doing that intentionally to ruin your opposing counsel’s weekend? We have found that our most annoying OCs also have this habit and that, if you’re not careful to shut down your email program on Friday afternoon (or, back in the day, avoid the fax machine), you end up with a sour stomach the whole weekend. Don’t be that guy.
9. Have a sense of humor. The pompous ass quotient is law is, statistically speaking, the highest of any profession except right-wing talk show host.****** Do your part to reduce pomposity by regularly laughing at yourself, your arguments, (privately) your opposing counsel and (privately if you’re wise; publicly if you have a blog) our entire self-important profession.
10. Oh yeah, and don’t steal from your clients or divulge their secrets, you doorknob.
* By “we” I mean, of course, the other guys.
** That’s a joke. Be polite and just pretend you knew that was a joke.
*** Careful readers will observe that this is closely related to Rule 1.5 of the Revised Federal Rules of Civil Procedure.
**** I’m operating under the assumption that we all share the goal of eradicating jerk lawyer culture. This assumption, alas, does not have a lot of empirical support.
***** My favorite example of this was an OC whose brother was quadriplegic, telling my husband (a quad) and co-counsel (also a quad) that fact and adding something like, “yeah, we visit him in the nursing home.”
****** And Keith Olbermann. I never got the attraction of hearing what was more or less the political truth from an ass almost as pompous as the conservative asses he was refuting.