I don't watch The People's Court, Judge Judy or other televised U.S. courtroom “reality” shows, but there was an exchange a year or two ago that has been viewed by nearly three-million people on YouTube alone, where Judge Marilyn Milian tore a strip off a second-year law student.
The People’s Court judge took him to task for rudeness, lack of respect, and incivility after he had argued a small commercial case before her. If you check the video out, you’ll clearly see this fellow needed a smackdown and a lesson in courtroom manners. Judgment was awarded against the overaggressive law-student’s client, as were legal costs.
The exchange is instructive for lawyers – the majority of whom practice in private law firms and who are, in essence, running small or medium-sized businesses. It's also instructive for other business clients who think hiring a tough-as-nails lawyer who likes to cross lines, draw swords and tilt at windmills is going to help them win the day.
In the legal profession, civility – or perhaps more accurately “incivility” – is getting some serious attention. If the lawyer you've picked to argue your commercial litigation case goes way over the line in his or her dealings with other counsel, or with witnesses, or (gulp) with a judge, it could have negative consequences for your lawyer and for you and your case. You could lose and also have to pay the winner’s court costs. Or you could win and still have to pay the loser’s court costs based on the conduct of your counsel.
On the other hand, shouldn’t your lawyer be a zealous advocate of your cause without having to worry about “civility chill” and the possibility of being reprimanded by his or her respective law society for courageous and relentless advocacy? Isn’t that why people hire lawyers in the first place?
The issues are complicated.
A case in point is the recent decision by the Law Society of Upper Canada and litigator Joe Groia, who acted for Bre-X vice chair John Felderhoff in proceedings launched by the Ontario Securities Commission. Mr. Groia was accused of being acrimonious, abusive and offensive with respect to his dealings with the prosecution, particularly on the issue of proper disclosure. His client was acquitted, but comments made by the Court of Appeal about Mr. Groia lead to a hearing and a subsequent finding of professional misconduct by the Law Society over his conduct.
“Our system of justice is based on the premise that legal disputes should be resolved rationally and in an environment of calm and measured deliberation free from hostility emotion and other irrational or disruptive influences ...” the hearing panel said. “Incivility and discourteous conduct detracts from this environment, undermines public confidence, and impedes the administration of justice and the application of the rule of law.”
Mr. Groia was found to be unprofessionally sarcastic and condescending in the course of his defence, which put him at odds with his law society. He is appealing that decision.
In B.C., a lawyer in an insurance case lampooned a witness for the insurer, calling him “The Amazing Carnac” (a reference to Johnny Carson’s beturbaned and bejeweled psychic fortune teller Carnac the Magnificent). But the mockery and sarcasm went too far, and Supreme Court Justice Peter Voith declared a mistrial toward the end of the 13-day hearing and the jury was discharged. A lot of time had been wasted, a new trial date would have to be set – a year or more away – and the work the client’s lawyer did to prepare for and conduct the new trial would have to be redone (as well as the work done by the insurer’s counsel).
Justice Voith said the expert witness, “a professional person, was knowingly and intentionally made an object of derision and ridicule. That attack may well use some ‘drama and pathos.’ I do not consider or accept that it should extend to ridicule based on counsel's belief that a witness's evidence is ridiculous. It should not depict or describe a professional person, qualified to give expert evidence, as a fool or buffoon based on counsel's perception of that witness. In this case, the indirect assertion that the witness was a buffoon was reinforced by the sarcastic tone, again often independently acceptable, which counsel for the plaintiff used in these submissions.”
In my own experience negotiating commercial contracts or attempting to resolve disputes before they get to litigation, I have found that grandstanding, mockery or “uncivil” behaviour by a lawyer is not only inappropriate, it is profoundly counterproductive and it will always do more harm than good. Lawyers should advocate for their clients in negotiations, but that doesn’t mean they should take on a client’s dislike or animosity for the other side, or that they should grandstand or be abusive.
The B.C. Canons of Legal Ethics states that: “a lawyer's conduct toward other lawyers should be characterized by courtesy and good faith. Any ill feeling that may exist between clients or lawyers, particularly during litigation, should never be allowed to influence lawyers in their conduct and demeanour toward each other or the parties. Personal remarks or references between lawyers should be scrupulously avoided, as should quarrels between lawyers which cause delay and promote unseemly wrangling.”
There’s an art to successful negotiations, even tough negotiations, and incivility on the part of your legal team shouldn’t be part of it.
Tony Wilson is a franchising, licensing and intellectual property lawyer at Boughton Law Corp. in Vancouver, is an adjunct professor at Simon Fraser University, and is the author of two books: Manage Your Online Reputation, and Buying a Franchise in Canada. His opinions do not reflect those of the Law Society of British Columbia, SFU or any other organization.