Consider this scenario: You see opposing counsel’s name in your email inbox and, immediately, your blood pressure begins to rise. You have been attempting to confer with them regarding dates for the proposed case management order the judge instructed the parties to submit jointly. However, they have thus far been dismissive and ignored the multiple voicemails you left.
When you click on the email, instead of proposed dates, you find that opposing counsel has shared their unsolicited thoughts on the merits of your case and dismissively stated an unwillingness to cooperate in scheduling case deadlines.
“Your case is absurd on its face,” opposing counsel wrote. “I’m not wasting my time on this. For all I care, this case can linger forever.”
You feel a mixture of annoyance and fatigue and are unsure of the best way to respond.
Fortunately, two Illinois judges provided guidance on how to respond to this type of scenario during the Illinois Supreme Court Commission on Professionalism’s recent Future Is Now: Legal Services conference.
Strategies for navigating incivility in legal proceedings
During their panel titled “You Be the Judge: Perspectives on Civility from the Bench,” Cook County Circuit Court Judge Barbara N. Flores and Sixth Judicial Circuit Court Judge Matthew D. Lee offered practical advice for attorneys regarding navigating incivility during legal proceedings.
I had the pleasure of moderating this panel and found the three strategies outlined below to be particularly instructive:
1. Do not retaliate or undermine your professional reputation.
Although it may feel tempting to respond to incivility with even greater incivility, Judge Lee reminded the audience that the judge is watching, and your actions may impact your credibility.
Indeed, he said that judges may make inferences about lawyers based on their behavior, including those who behave unprofessionally and those who maintain professionalism in the face of incivility.
This may be especially important when close legal issues requiring the exercise of judicial discretion arise, Judge Lee said, emphasizing that lawyers who behave professionally will have more credibility when advocating for their position.
Accordingly, he and Judge Flores strongly advised against retaliating and exacerbating the incivility.
2. Document your attempts to move the case forward.
Because you ultimately may have to bring opposing counsel’s unprofessional behavior to the judge’s attention, both judges said it is important to try to document opposing counsel’s incivility and your efforts to resolve the issues constructively.
For example, when advising how to respond to the snide email described in the introduction, the judges agreed that the receiving lawyer should avoid becoming entangled in a protracted series of correspondence with opposing counsel. Instead, the lawyer should succinctly memorialize their efforts to reach an agreement regarding case management deadlines.
In a professional tone, the lawyer should email a brief response that (i) states that they are simply seeking to comply with the judge’s instructions to confer; (ii) attaches proposed dates for the case management order; and (iii) specifies a reasonable date by which a response is requested.
If opposing counsel fails to respond to the email and the lawyer is forced to bring the issue before the judge, the judges noted that the lawyer will have documentation showing their efforts to cooperate and expeditiously proceed with the litigation as well as opposing counsel’s recalcitrance.
Correspondence between lawyers often ends up as exhibits to pleadings, underscoring the importance of refraining from retaliation or deploying inflammatory rhetoric in response to incivility.
3. Seek judicial intervention to protect your client’s interests.
According to the Commission on Professionalism’s 2021 Survey on Professionalism: A Study of Illinois Lawyers:
- 94% agreed that incivility makes it more difficult to resolve a matter
- 90% agreed that incivility tends to prolong discovery and/or negotiations
- 88% agreed that incivility leads to an increase in litigation/transaction costs
Clients therefore are negatively impacted when incivility persists unchecked.
As lawyers must ensure that incivility does not preclude them from fully protecting their clients’ interests and preserving key issues for potential appeals, Judge Flores and Judge Lee emphasized that lawyers should bring the incivility before the judge when necessary.
For example, if improper speaking objections have caused a deposition to deteriorate, Judge Lee noted that Illinois Supreme Court Rule 201 provides for supervision of discovery. Therefore, upon a proper motion or the court’s initiative, a judge can be available during a deposition to rule on objections in real-time. (See Rule 201(c).)
Additionally, if an opposing counsel’s interruptions during a hearing are preventing you from expressing the information or arguments necessary to fully state your client’s case, Judge Flores advised lawyers to note those key items. Then, she advised lawyers to respectfully request to be heard on the issue, directing all comments to the judge (as opposed to the other lawyer).
This signals to the judge that you are not being afforded the opportunity to fully speak on an issue. Additionally, to the extent the judge has not already admonished opposing counsel for the disruptions, it provides the judge with another opportunity to do so.
Acknowledging that some lawyers may fear that bringing incivility before a judge could somehow be “improper or going too far,” Judge Lee said that judges are increasingly being taught that addressing incivility and ensuring everyone is treated with respect are integral parts of a judge’s job.
Allies in the judiciary
As the panel’s moderator, I expected conference attendees to find the perspectives of Judges Flores and Lee to be educational—which they overwhelmingly did. I was struck, however, by the attendees who expressed gratitude for the empathy the judges expressed.
Indeed, one lawyer wrote that it was “good to know the judiciary will support us.”
Litigation is inherently adversarial, and lawyers can often feel alone in the face of unproductive and unprofessional attacks. I hope it was heartening for the lawyers in attendance to learn that judges can be their allies in advancing civility and justice.
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