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Litigating Effectively in a Contentious Environment
Frivolous lawsuits. Sneaky discovery decisions. Unreasonable motion practice. “Rambo” litigators. If you are a defense attorney, you likely encounter one or more of these abusive litigation tactics on a monthly ' if not a weekly ' basis. These tactics are becoming more common across all categories of litigation, and therefore are also increasingly prevalent in pharmaceutical and medical malpractice cases. What are some of those tactics, and how can they be addressed?
Zealous Advocacy Is Not Abusive Advocacy
Lawyers should act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf. See Model Rules of Prof 'l Conduct R.1.3 (2012), cmt. 1 (emphasis added). But “zealous advocacy” does not mean “unrestrained advocacy.” Many attorneys seem to have lost their way in the gray area between their duty to provide zealous advocacy and the manner in which they fulfill that duty. By exchanging civility and professionalism for abusive and unprincipled litigation tactics, these attorneys have transformed the legal system from a principled institution that was created to resolve conflicts into a war zone where the enemy must be destroyed at any cost. Even as bad behavior has become more and more prevalent in the courtroom, the worst offenses may occur before parties ever appear before a judge, during discovery and other pre-trial activities. Because these activities generally go unnoticed by the court, the perpetrator of the bad behavior often feels emboldened to utilize his or her tactics on another day.
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