By Drew Campbell
Litigators.
You know who they are, because they tell you. Many litigators will tell you that they are aggressive and confrontational. They take "killer depositions" and "destroy" witnesses. They "take no prisoners." They "shoot the wounded." And, paraphrasing Nikita Khrushev's famous prediction for the survivors of nuclear war, they promise that the "living will envy the dead" before the discovery process is complete.
War is the metaphor of choice for many litigators because they grew up in the "trenches" of modern civil litigation where the suggestion of a concept like "alternative dispute resolution" was viewed as weakness or, worse, a sign of impending emotional breakdown. In a world of fierce competition for increasingly complex legal work, it is perhaps understandable how the profession has migrated to this state.
Clients, to some degree, may have encouraged this kind of philosophy. American businesses are under profound pressure to meet revenue targets and contain costs in a world of ever-increasing competition and regulatory complexity. The margin for error is ever smaller, as equity stakeholders impose extraordinary standards for performance in a world of vanishing profits. Is it any wonder that outside counsel views its mission with military urgency?
But for in-house counsel, these metaphors should create at least as much concern as confidence. "Aggressive" litigation often means unresolved discovery disputes (expense), longer depositions (more expense), increased motion practice (even more expense), and a longer road final resolution (a lot more expense).
And to what end? Has the client's goals been achieved? Has the cost exceeded the benefit? Has the strain on human capital diverted attention away from the bottom line? And, perhaps most important, what has happened to the good name and reputation of our client in the process?
Overlooked in the "battle of litigation" is perhaps the most effective tool in our "arsenal": Civility.
This simple concept can reduce cost, increase efficiency, and promote the best interests of our clients. And it can help us to win. Here's how.
First, civility is a sign of strength. Let's be clear. Litigation is difficult, and requires thoughtful and aggressive action. Civility does not mean capitulation. Rather, it means playing by the rules, and not demonizing our opponents.
We may employ an aggressive motions practice, but not to obstruct or delay the process. We may draw the line on certain aspects of discovery, but only for principled reasons. And where there are disagreements with opposing counsel, we address them directly, plainly, and with respect.
According to Judge Marvin Aspen: "[Civility] demonstrates strength and integrity to be firm in one's convictions without being nasty, patronizing, or obstinate. An attorney who believes that civility is incompatible with aggressive litigation does a disservice to his or her client because he or she has not recognized that there is a difference between zealous advocacy and overzealous representation that wastes time and inspires the court's (and opposing counsel's) ire." (Marvin E. Aspen, Overcoming Barriers In Litigation, 69 Miss. L.J. 1049, 1056 (Spring 2000)).
Second, civility promotes efficiency and reduces costs. Treating your opposing counsel disrespectfully or dishonestly disrupts communication, which inevitably increases the number, and contentiousness, of motions. Filing a motion costs money, and delays the progress of the case, which costs even more.
Civility, on the other hand, promotes communication, which increases cooperation, informal agreements, and can dramatically reduce costs.
"At a time when corporate clients are putting more and more pressure on their law firms to reduce costs, incivility simply does not make good business sense. Imagine a three-hour deposition in which eighteen minutes were taken up by the attorneys bickering on the record. Few if any lawyers would enjoy telling their firm's billing committee that the client insists on an extra 10 percent discount on its bill because it refused to pay for time not related to the deposition." Id. at 1061.
Third, civility gets results. Attorneys who speak civilly to one another are better able to manage discovery, candidly explore their respective cases, and identify opportunities for early resolution. Even in those cases that cannot be resolved short of trial, communication can dramatically limit the issues, narrow the scope of the trial, and in many cases may reduce liability.
"If even one side in every lawsuit maintains its civility, firmly and consistently, presenting its case without giving in to the hostile behavior of the other party, the tenor and length of the entire case would be improved without sacrificing the outcome for the more 'civil' side." Id.
Finally, civility enhances the reputation of litigants. Every lawsuit creates a public relations challenge. Whether it is a business dispute or a high-profile class action, the corporate litigant will make decisions that will have consequences far beyond the immediate dispute. Civility can only enhance corporate image, no matter how difficult the underlying issues may be.
The promotion of civility creates an opportunity for a positive collaboration between in-house and outside counsel. A lawyer once lamented that "[clients] have no choice and virtually no control over permanent damage being done to them by their own lawyers . . ." (Marvin E. Aspen, Professionalism In The Practice Of Law: A Symposium On Civility And Judicial Ethics In The 1990s: The Search For Renewed Civility In Litigation, 28 Val. U.L. Rev. 513, 522 (Winter, 1994)).
But this is simply not true. In-house counsel is uniquely situated to promote civility by making it a criterion for retention of outside counsel, as well as a cornerstone for litigation strategy.
By so doing, in-house counsel can manage costs, better predict outcomes, and add significant value for their corporate client.
In-house counsel can help to bring change to our culture of conflict by modeling civility and requiring it of their outside counsel.
Imagine the headline created by that partnership: "Lawyers and Corporations Win War for Civility!"
Drew Campbell is partner and chair of Bricker & Eckler's litigation practice group. His practice includes complex commercial litigation, insurance business litigation, and fiduciary litigation. He can be reached at 614.227.2319 or dcampbell@bricker.com.
May 2008 / MWIH
