“The city’s position on appeal was not enhanced by its derogatory references to the plaintiffs’ case.” – Supreme Judicial Court in Darius

Our clients hire us to be advocates, and we wouldn’t be doing our jobs if we didn’t assert ourselves on their behalf. But incivility degrades our profession and works to the detriment of our clients.

Here are examples of behavior that goes beyond the pale, often not in a judge’s presence:

1. Filing briefs that engage in ad hominem attacks against opposing counsel, as in “among the myriad misrepresentations in the plaintiff’s brief” or stating before a judge, “Mr. Jones has just made another misrepresentation to the court.”
2. Jumping to the conclusion that opposing counsel is acting in bad faith, simply because opposing counsel has a different position.
3. Referring to any misstep by opposing counsel as “a fraud on the court.”
4. Automatically asking for sanctions against opposing counsel in every single motion they file.
5. Screaming at opposing counsel in person or over the phone for the sake of impressing a client misguided enough to believe he will be best served by a bulldog, or because the screamer is hoping to make opposing counsel feel cowed.
6. Automatically saying “no” when asked for an extension, regardless of whether opposing counsel has had a death in his family or needs to tend to a child with a broken leg, or posing an unreasonable quid pro quo that would require opposing counsel to abdicate his client’s rights.
7. Using a follow-up email to create a paper trail of things opposing counsel never said in a telephone conversation.
8.  Bickering about small issues that have no relevance to the outcome of the case.
9. Setting deposition dates that are a problem for opposing counsel or a key witness, and thereby forcing an emergency motion.

Granted, all of us have our moments and may believe claims being asserted by opposing counsel are ridiculous. But that is for the judge or the jury to decide. Our own enlightened self- interest requires we take to heart a few of the observations provided to us by both well respected lawyers and Massachusetts Trial Court judges:

1. Lawyers who posture about their cases can unwittingly call attention to their own concerns about weaknesses in their case they would otherwise prefer not to reveal.
2. Nasty emails can become part of the record, to be seen by a judge who won’t think too highly of the lawyer who fired them off.
3. The way a lawyer is behaving can affect on the spot discretionary decisions by a judge.
4. Indiscriminate motions for sanctions can seriously harm an attorney’s reputation among judges.
5. Jurors dislike watching a lawyer treat opposing counsel with disrespect.
6. Incivility virtually never advances the ball for your client.

By the way, there are two good resources for guidance about what constitutes professional behavior among lawyers. One is the Boston Bar Association’s Civility Standards for Civil Litigation; the other is the American College of Trial Lawyers’ Code of Conduct.

There is a distinction between being civil and being a push-over. You don’t have to concede any points or argue any less zealously for your client when you’re being civil.