The Price of Incivility

There has been an ongoing argument over civility in law for years now, with the simplistic side arguing “don’t be a jerk,” the pejorative “jerk” falling somewhat shy of a definition, and the less sensitive side arguing that a lawyer should be whatever best serves the client, whether that means being civil or, when necessary, hoist the black flag and slit throats.

For the most part, the argument is one of sensibilities, where gurus of goodness implore lawyers to be kinder and gentler because it makes lawyers feel better about their career choice. But in an odd California case, Karton v. Ari Design, replete with a number of other influences that won’t be discussed here but shouldn’t be ignored, the Court of Appeals put a price on the question.

Finally, the court considered the role of civility — focusing on the plaintiff’s conduct — in determining the attorney’s fee. It begins by trying to associate civility with skill.

Attorney skill is a traditional touchstone for deciding whether to adjust a lodestar. Civility is an aspect of skill.

Excellent lawyers deserve higher fees, and excellent lawyers are civil. Sound logic and bitter experience support these points.

This isn’t a question of whether lawyers should, as a default, be civil to one another. Of course we should. Or to put it somewhat more harshly, don’t be an asshole. But there’s a brief line in there that raises a dubious proposition: Civility is an aspect of skill. Is it? Steven Chung accepts the basic premise, but with caveats.

I would agree that attorneys using respectful, persuasive words and arguments to present their cases should be better compensated than those who run their mouth off and “call it like it is.”

But while excellent lawyers should be civil, that is the bare minimum. They tend to be those who make their clients happy. That does not mean winning all the time or winning by any means necessary. Sometimes it’s about damage control and being strong advocates for their clients.

In Karton, a fairly straightforward case where the plaintiff was a lawyer who, in part, represented himself and sought statutory attorneys fees for his time, the court reduced the fee request from $270,000 to $90,000. There were a number of reasons for this reduction, but civility was one of them.

Civility is an ethical component of professionalism. Civility is desirable in litigation, not only because it is ethically required for its own sake, but also because it is socially advantageous: it lowers the costs of dispute resolution. The American legal profession exists to help people resolve disputes cheaply, swiftly, fairly, and justly. Incivility between counsel is sand in the gears.

Perhaps in the mind of a certain type of judge, who has never sat with a living, breathing client, keeping the gears of “justice” moving is the reason lawyers exist, but most clients would disagree. They want to win. They want vindication. They want money. They want freedom. And if the lawyer needs to throw the occasional punch to do so, clients damn well expect them to be tough enough to do so. Chung gets this.

The problem is that since the American legal profession has an adversarial dispute resolution system, it is sometimes not possible to have a quick-fix solution where everyone will be happy, particularly where one side will lose big. What might be socially advantageous from a judge’s perspective is not always the case from the lawyer’s perspective. The lawyer has to provide results for his client and being civil will only go so far.

Much of the time, getting along with one’s adversary is far more effective than hostility, and serves the client’s interest both by keeping fees down (pointless fighting tends to generate needless hours of work that accomplish little yet get charged at the going rate) and getting to the crux of the issue, the legal problem in need of resolution. Sure, we can argue the facts and law, but that can be accomplished with civility. Except when it can’t.

Incivility can rankle relations and thereby increase the friction, extent, and cost of litigation. Calling opposing counsel a liar, for instance, can invite destructive reciprocity and generate needless controversies. Seasoning a disagreement with avoidable irritants can turn a minor conflict into a costly and protracted war. All those human hours, which could have been put to socially productive uses, instead are devoted to the unnecessary war and are lost forever. All sides lose, as does the justice system, which must supervise the hostilities.

But what if opposing counsel is lying? Do you not call him a liar because it’s uncivil? The court is right, that it devolves into “destructive reciprocity,” and sucks up time that could have been put to “socially productive uses,” whatever that means, demanding the time of the judge to “supervise the hostilities.” But what do you do if counsel, in a most civil tone, lies? Of course, you can reply with similar civility that counsel’s representation of the facts emits an unpleasant odor that tends to attract a great number of flies, but even so, feelings could be bruised.

Is civility an aspect of skill? A deeper assertion would be that knowing when and how to be civil, and when and how not to be, is an aspect of skill. And that is becoming an increasingly insurmountable problem.

Finally, if civility will play a bigger role in litigation, there should be some definitions on what constitutes uncivil behavior. As I stated earlier, it is difficult to define what it means to behave civilly. And in recent years, what is considered offensive has grown to levels beyond comprehension and seems to be mutating frequently. I would hate to see the ironic situation where an attorney accuses the opposing counsel of uncivil behavior and dealing with that issue prolongs litigation instead of moving the case forward.

Putting aside the fact that no law firm promotes itself by claiming it provides “civil” representation as opposed to “aggressive,” civility has become a constantly moving goal post, with the perpetually offended redefining it hourly. If courts are going to exact a cost for incivility in the extant climate, then they need to draw a line rather than leave it up to the delicate sensibilities of the moment. But doing that would require judges to appreciate that lawyers duty isn’t to make their world more pleasant, but to represent their client. If civility is an aspect of skills, so too is knowing when not being civil is in the client’s best interest.