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What's law Got to Do with It: Civility

Is your lawyer an effective advocate? Don't be impressed by yelling and screaming. Toughness and smarts come in many forms.

Late this week, I conducted a short, 90-minute deposition of a defendant doctor in a medical malpractice case. When it ended, his attorney, my adversary, rose to escort me out of his office. He smiled, shook my hand and told me, "You're a feisty little sh- ."

"Thank you," I replied, I hope I wasn't rude to you."

"Not at all," he said.

We lawyers must manage mixed messages about what makes us respected and effective. The Rules of Ethics require us to be zealous advocates for our clients, yet also civil to our opponents. Our adversarial system stresses toughness, yet in the end, most civil cases are settled. Thus, we must, by turns, get tough with our adversaries in the courtroom, yet turn around and soften in the conference room if we hope to settle.

Recently, I've heard cries that lawyers have lost their civility toward each other as compared to the past, but I disagree. To me, nothing is worse than an old codger attorney, who thinks every encounter is a battle and a psych-out game. Unfortunately, too, clients often erroneously expect their advocate to be a "barracuda." I say putting on a dog and pony show for the client's benefit may actually hurt their interests. Nothing is less productive than turning a lawsuit into a grudge match between the lawyers.

So what is effective advocacy, if histrionics won't do? For me, the keys are preparation, focus, tenacity and hopefully brains and talent. My deposition questioning of adverse witnesses can be probing, spirited, intense and insistent. But the questions are direct and without sarcasm.

The lawyer who smiled and cussed this week, had also tested me. He had tried to block and steer my deposition questioning. I stood my ground and firmly told him I would not accept his tactics. He told me afterward that he thought I had done my homework and had asked detailed and clever questions. I had made his job "interesting," he said. He also saw that I was not attempting to bait or intimidate him or his witness. Yet, my questions kept coming, and I would not stop until his client gave complete answers.

"Feisty little sh- "? I'll take it. Sometimes the best compliment is the one you get from your adversary.

This post is contributed by a community member. The views expressed in this blog are those of the author and do not necessarily reflect those of Patch Media Corporation. Everyone is welcome to submit a post to Patch. If you'd like to post a blog, go here to get started.

Grifhunter October 03, 2012 at 06:57 PM
Isn't that story about your adversary's comments classic heresay counselor? Jeesh, I remember a time when it was undignified for a lawyer to self promote.
Mitchell Kessler October 04, 2012 at 05:10 PM
"Hearsay," to which you refer, (please note the correct spelling), is a rule of evidence. This is the rule: When offered as evidence at trial, hearsay will be barred from evidence. Hearsay is defined as follows: An out of court statement, offered for the truth of the statement made. Of course, a blog is not a courtroom. Nonetheless, I believe that the quote in my blog would still be admissible in evidence in court as a hearsay exception. An out of court statement offered, not for its truth, but for the mere fact that it was said, would be admissible in evidence. The quote in question might thus be admissible in evidence as a hearsay exception. On your second point, lawyers have been writing articles and books about their experiences for decades, beginning probably with Louis Nizer's, My Life in Court. Lawyer advertising has been legal for over 30 years. Thank you for providing me an opportunity to further educate my readers.
Grifhunter October 05, 2012 at 01:43 AM
Isnt the reason for the heresay rule so that the decision makers get to hear the words directly from the speaker and thus it is more likely to be truthful? Easy enough, have the defense lawyer come on here and say all the nice complimentary things. Then you don't need exceptions or whatever. As for lawyer self promotion, whats done or whats legal has nothing to do with whats dignified or professional.
Mitchell Kessler October 05, 2012 at 07:23 PM
The hearsay rule is intended to give the person against whom testimony is offered, the opportunity to cross examine the witness against him/her. However, as stated, there are numerous exceptions. I refer you to Richardson on Evidence, if you would like a complete treatise on the subject. However, as also stated, a blog is not a trial. The quotation mentioned is not testimony against anyone. The hearsay rule of course does not apply to publications, as the Patch and all media are full of quotes. As to your second comment, this is incorrect. To be legal, attorney advertising must indeed be dignified and professional. Of course, these definitions of "dignified" and "professional" are not designed to meet any one person's taste, but are rather based upon statutory and judicial standards as understood by the courts and other regulatory agencies.

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