"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.