Arbitration & Mediation

Negotiating Civility: An Idea Whose Time Has Come

By Victoria Pynchon

I was at a meeting of settlement officers for the U.S. District Court (Central District of California) last week when someone complained of a proposed rule change that attorneys would "game the system."  I said (snarkily) "is there any other way?" 

An early mentor told me:  anyone can win on the merits - it takes a great lawyer to win on procedure. 

That was the least of it.  Here are some other words of wisdom handed directly down to me from lawyers past:

you don't get paid to settle; you get paid to win

if the other side wants it, you don't; if you can't see how it will hurt you now, you haven't thought enough about it yet

we don't give extensions of time, period, ever; we make them regret the day they sued our clients (or defended theirs) 

come back with your sword or on it

make her cry (pre-deposition instruction about opposing counsel; I did; came back and said "don't ever ask me to do that again")

bury them in paper

bury it [the smoking gun document] in paper

object, object, object - the other side has to meet and confer anyway

I solicit more of this litigation oral tradition from my readers. 

Of course we "game" the system. Isn't that what our clients pay us to do?  To walk up to the line of wrong-doing; stop just short of it; and, make them regret the day . . . . Has it changed?  Here's what the State Bar of California would like litigators and their clients to do:  be civil.

RESOLUTION OF [_____________________________]
APPROVING AND ADOPTING CALIFORNIA ATTORNEY
GUIDELINES OF CIVILITY AND PROFESSIONALISM
RECITALS

A. As officers of the court with responsibilities to the administration of justice, attorneys have an obligation to be professional with clients, other parties and counsel, the courts and the public. This obligation includes civility, professional integrity, personal dignity, candor, diligence, respect, courtesy, and cooperation, all of which are essential to the fair administration of justice and conflict resolution.

B. Civility and professionalism have been affected by a number of factors, as a result of which there is a need for attorneys to recommit themselves to the principles of civility and professionalism.

C. On July 20, 2007, the Board of Governors of the State Bar of California adopted California Attorney Guidelines of Civility and Professionalism.

D. The Board of Directors of [________________] are of the unanimous opinion that the Guidelines will be of significant assistance in encouraging members of [________________] to continue to enhance their reputation and commitment to civility and professionalism.

RESOLUTION

The Board of Directors of [________________] hereby approves and endorses the California Attorney Guidelines of Civility and Professionalism and recommends that all members of [________________] commit to and agree to be guided by such
Guidelines.

Dated: _______________
[________________________]
By: _____________________
California

The full California State Bar "Civility Toolbox" here.

Full post as published by Settle It Now Negotiation Blog on March 23, 2010 (boomark / email).