"Offensive Personality"

"Offensive personality" is a phrase that always intrigued me. One finds it in civility codes. It's what you're not supposed to have. Today's WSJ has a front page article that uses the occassion of an Inns of Court event in New York to revive (for the 1000th time) the question of civility or the lack of it. I'm not sure why it's on the front page except that a federal judge who participated in the panel sang a song to which he wrote the words.

Can anything really be done about this? Put aside racist and sexist comments, both of which have been punished, threats of physical violence (or actual violence), excessive objections, cursing and name calling (all punished). But what about the lawyer who makes faces at the witness in a deposition? Or whose questions are bitingly sarcastic, laden with innuendo, none of which may be apparent on the page? 

I've been deposed by lawyers where the transcript can read like a high level seminar. The best deposing lawyer I ever encountered was able to zero in with focused and sequential questions on what he reasonably believed were the gaps in my testimony. That took a lot of preparation.

And less often, thankfully, I've been deposed by lawyers for whom the term "offensive personality" fits perfectly. They can make you cry for the profession. But unless the conduct is eggregious and easy to prove, courts don't want to be bothered. It's the litigation equivalent of "he hit me first." 

One friend who was defending a deposition was faced with a really offensive lawyer, a prominent litigation partner at a brand name firm. After it went on for a couple of hours, my friend suggested that the lawyer pretend that his pre-teen children were in the room and that the lawyer thereafter act in a way that would make them proud of him. Didn't work.

We've been talking about civility for decades and I do think matters have improved, but there's still and always will be the outliers about whom nothing can be done. Or so it seems to me.

Comments

[Dan Abrams]

Anything less than the egregious outliers will almost always escape punishment. Judges have limited time and few have the inclination to make the judgment calls between legitimate advocacy and behavior that should be punished. There is also the "cry wolf" problem of lawyers complaining about an adversary's behavior when the facts don't justify the complaint.

[Richard Painter]

Lawyers who behave this way end up paying a heavy price because other lawyers don't want to deal with them (this is a big problem in transactional work and sometimes also a problem in litigation), other lawyers assume a hostile position toward them in discovery and other matters, they find it more difficult to negotiate settlements for clients, and so on. These types of lawyers also earn a bad reputation with judges, particularly if lawyers behave this way in open court or if judges read deposition transcripts where lawyers are rude. Finally, other lawyers, the business community, and society as a whole look down on these types of lawyers, and for good reason.

[stephen gillers]

You're an optimist, Richard. In litigation, you have no choice but to deal with it. In transactional matters, you often have no choice because the client wants the deal. Anyway, the behavior is most prevalent in litigation. If it doesn't pay, why doesn't it stop? And don't some misguided clients mistakenly conclude that the behavior will help them -- that "my lawyer is fighting for me?" I fear for those who make a career out of being this way, it has paid.

[Nicole Hyland]

I agree to a certain extent with Richard and Stephen. I agree with Richard that this behavior harms lawyers who engage in it. But I agree with Stephen that the lawyers who act this way generally don't perceive the harm it does to their reputations, so they are not deterred. In addition, those lawyers are encouraged by clients who aren't always behaving rationally. There are some clients who enjoy seeing their lawyers behaving badly even though that behavior may ultimately undermine the client's interests.