by Anthony J. Gonzalez
A good friend and mentor of mine once told me a story about how he explained the adversarial practice of law to his father. He told his father, a plumber, to imagine himself working all day, pipe fitting the walls in a new home. As soon as he was done fitting the walls, he told his father to now imagine another plumber coming in and tearing down everything he just worked all day to create. That is exactly what the adversarial practice of law is.
I have had the good fortune of working in the legal profession for nearly ten years and, at this point in my life, I am commonly referred to as a baby lawyer. As I begin to prepare to take the Bar Exam, I reflect back on the words of good friends, colleagues, and mentors alike. I cannot help but notice that this profession seems less relatable to pipe fitting, and more relatable to the Wild West, where shots are fired first and questions asked later.
“Civil behavior is a core element of attorney professionalism. As the guardians of the Rule of Law that defines the American social and political fabric, lawyers should embody civility in all they do.”[1] It is one thing to ask lawyers to be civil in all they do, but, without splitting hairs, civility is the best way to resolve cases—the path of least resistance so to speak. Lawyers have a hard enough time having to overcome general public opinions about the profession[2] in addition to fictitious movies and primetime television shows that have established a precept that lawyers need to be tough and nasty.[3] Lawyers do not need to look far to find guidance on the issue: they simply have to look at the rules.
In civil litigation, the discovery process is where issues of communication most often arise. Under Florida Rule of Civil Procedure 1.380(a)(2), where a party fails to comply with a discovery request, the requesting party may file a motion compelling opposing counsel to produce the responsive documents.[4] However, “The motion must include a certification that the movant, in good faith, has conferred or attempted to confer with the person or party failing to make the discovery in an effort to secure the information or material without court action.”[5] That good faith standard leaves considerable discretion to each judge, but consider what you have done and what you could have done in attempting—in good faith—to resolve the matter before bringing it before the judge. Aside from one’s concerns with a judge thinking one did not undertake a good faith effort, one also risks making an enemy out of opposing counsel.[6]
The Guidelines for Professional Conduct provide that, in communicating with an adversary, “counsel should always be civil and courteous.”[7] The same also provides that, in conducting oneself at trial, a lawyer should always act with courtesy and civility.[8]
Lastly, it goes without saying that an undertone of this blog post is the promise to zealously represent your client. However, a “lawyer is not bound . . . to press for every advantage that might be realized for a client.”[9] Further, “[t]he lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.”[10]
So what is the bottom line? Comradery is key in this profession because lawyers are part of a community, and what goes around comes around.[11] For that same reason, the greatest victory is that which requires no battle.[12] In conducting oneself in this adversarial practice of law, remember the oath of attorney, the rules that govern attorney conduct, and the rules of procedure. If someone makes a mistake, picking up the phone and making a call will solve the issue nine times out of ten. If in doubt, give opposing counsel the benefit of that doubt—leave the gun, take the cannoli.[13]
[1] Jayne R. Reardon, Civility as the Core of Professionalism, Bus. L. Today, Sept. 2014, http://www.americanbar.org/publications/blt/2014/09/02_reardon.html.
[2] Staci Zaretsky, Lawyers: The Most Despised Profession in America, Above The Law (July 15, 2013, 3:31 PM), http://abovethelaw.com/2013/07/lawyers-the-most-despised-profession-in-america/?rf=1.
[3] Marlo Van Oorschot, Civility in the Practice of Law: How the Legal Profession Can Do Better, Bencher, July-Aug. 2013, https://inns.innsofcourt.org/for-members/current-members/the-bencher/recent-bencher-articles/julyaugust-2013/civility-in-the-practice-of-law-how-the-legal-profession-can-do-better.aspx.
[4] Fla. R. Civ. P. 1.380(a)(2).
[5] Id. (emphasis added).
[6] Id.; see Fla. R. Civ. P. 1.380(a)(4) (requiring the same certification of good faith effort in order to seek fees and costs associated with a favorable ruling on a motion to compel).
[7] Guidelines for Professional Conduct, Fla. Bar (revised Dec. 22, 2015), http://www.floridabar.org/tfb/TFBProfess.nsf/5d2a29f983dc81ef85256709006a486a/2f2668cdfd7b99e085256b2f006ccd15.
[8] Id.
[9] R. Regulating Fla. Bar 4-1.3 cmt. (2006), https://www.floridabar.org/TFB/TFBResources.nsf/Attachments/0A266C6138C4A15685256B29004BD617/$FILE/RRTFB%20Chapter%204.pdf?OpenElement.
[10] Id.
[11] Juan Carlos Rodriguez, What to Do When Opposing Counsel is a Jerk, Law360 (June 25, 2014, 10:30 PM) https://www.law360.com/articles/546184/what-to-do-when-opposing-counsel-is-a-jerk.
[12] Sun Tzu, The Art of Warfare (Roger Ames trans., Ballantine Books 1993).
[13] The Godfather (Paramount Pictures 1972).