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.

Working with so-called “Rambo” litigators can be difficult and frustrating. They are masters at manipulating facts and engaging in revisionist history, and tend to have a “hair-trigger willingness to fire off unnecessary motions and to use discovery for intimidation rather than fact-finding.” Ronald L. Hicks, Jr., Strategies and Tips for Dealing with Dirty Litigation Tactics by Opposing Counsel. Defense Research Institute, 155, 156 (2013). These attorneys will invariably create a more adversarial and contentious experience. Therefore, it is essential that defense attorneys understand the importance of civility in obtaining justice; identify the tactics opposing counsel will use; and develop appropriate responses to those tactics so the focus can stay on the merits of the client's case.

Civility and Justice

Civility in advocacy promotes justice and fairness. As the U.S. Court of Appeals for the Ninth Circuit recently reminded us, the current system may be adversarial, but it is a system that relies on attorneys to treat each other with a high degree of civility and respect. Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1263 (9th Cir. 2010). The U.S. Court of Appeals for the Eleventh Circuit agrees: “There is no better guide to professional courtesy than the golden rule: you should treat opposing counsel the way you yourself would like to be treated.” Peterson v. BMI Refractories, 124 F.3d 1386, 1396 (11th Cir. 1997). Put simply: Uncivil conduct is simply unbecoming of the legal profession and impedes the exercise of justice. Recognizing this impediment, the legal profession has responded to the rise of uncivil behavior by adopting numerous state and local bar guidelines on civility and adding civility oaths for newly admitted attorneys, with many states mandating civility.

Guidelines

While civility codes act as guidelines and are not mandatory, they are promulgated by some of the largest attorney bar associations. The American Bar Association, for example, has a Civility Pledge for the use by employers of attorneys (“We recognize that overly aggressive litigation tactics and incivility among lawyers bring disrespect to the legal system and the role of the lawyer, increase the cost of resolving disputes, and do not advance legitimate interests.”); clients of attorneys (same); and judges (“including among judges and between judges and lawyers”). See Civility Pledge, American Bar Association, http://bit.ly/1OuKA17. Similarly, the American Board of Trial Advocates has “ABOTA's Principles of Civility, Integrity and Professionalism,” http://bit.ly/1O1FIfg, which enumerates guidelines regarding general conduct, behavior in court, and judges' conduct. Id.

States also promulgate civility through their bar guidelines. See, e.g., Fla. Guidelines for Prof. Conduct A(4) (“A lawyer should be courteous and civil in all professional dealings with other persons.”); Ala. Code of Prof. Courtesy 4 (“A lawyer should maintain a cordial and respectful relationship with opposing counsel”); see generally Guidelines of Prof. Courtesy and Civility for Hawai'i Lawyers.

Oaths

Several states have also addressed civility through their attorney oaths. See, e.g., S.C Admiss. to Practice Law R. 402(k) (“To opposing parties and their counsel, I plede fairness, integrity, and civility, not only in court, but also in all written and oral communications.”); GA Lawyer's Creed and Aspirational Statement on Prof. (“To the opposing parties and their counsel, I offer fairness, integrity, and civility.”); N.M. Rules. Gov. Admiss. Bar R. 15-304 (“I will maintain civility at all times, abstain from all offensive personality, and advance no fact prejudicial to the honor or reputation of a party or witness unless required by the justice of the cause with which I am charged.”); Utah Rules of Prof'l Conduct, Preamble (“I will discharge the duties of attorney and counselor at law as an officer of the courts of this State with honesty, fidelity, professionalism, and civility.”)

In 2011, the Supreme Court of Florida revised its oath due to growing concerns “about acts of incivility among members of the legal profession.” See In re Oath of Admission to the Fla. Bar, 73 So.3d 149, 150 (Fla. 2011). Florida's high court expressed its desire for the Oath of Attorney administered to new members of The Florida Bar to recognize “[t]he necessity for civility in the inherently contentious setting of the adversary process.” Id. (quoting In re Snyder, 472 U.S. 634, 647 (1985).) The oath now includes pledging “fairness, integrity, and civility.” Oath of Admission to The Fla. Bar.

Mandated Civility

Several jurisdictions, such as South Carolina (via oath, see supra), Florida (via violations of the pre-existing oath, see supra), Arizona (via a rule prohibiting “unprofessional conduct,” defined as “substantial or repeated violations”), and Michigan (via its rules of professional conduct), mandate civility. Further, federal courts have “inherent power” to address attorney misconduct during litigation. See Fed. R. App. P. 46; see also In re Snyder, 472 U.S. at 635; In re Justice, No. 1:11-MC-3, 2012 WL 2374677, at *32 (E.D. Tenn. June 22, 2012) aff'd, 525 F. App'x 291 (6th Cir. 2013) (suspending attorney, requiring forfeiture of 25% of awarded attorney's fees, and authorizing sanctions for discovery abuse in underlying litigation); Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1063 (9th Cir. 2007) (affirming district court's order of sanctions against attorney who filed repeated complaints containing allegation of injuries determined to be contrived and untrue); Moss v. Mackey, No. 1:07CV135, 2009 WL 322046, at *9 (W.D.N.C. Feb. 10, 2009) (requiring attorney to pay opposing counsels' fees and costs for filing frivolous claims).

In 2011, the Northern District of Texas, in Dondi Properties Corp. v. Commerce Sav. & Loan Ass'n,' 121 F.R.D. 284, 286 (N.D. Tex. 1988), made maintaining civility in court mandatory, explaining that such action was needed because “[a]s judges and former practitioners from varied backgrounds and levels of experience, we judicially know that litigation is conducted today in a manner far different from years past. Whether the increased size of the bar has decreased collegiality, or the legal profession has become only a business, or experienced lawyers have ceased to teach new lawyers the standards to be observed, or because of other factors not readily categorized, we observe patterns of behavior that forebode ill for our system of justice. We now adopt standards designed to end such conduct.” The Dodi court, therefore, ushered in a method for courts to establish standards of conduct to be observed in litigation.

A good defense attorney must use civility as part of his or her own litigation strategy. In addition to anticipating the strategies and tactics these aggressive attorneys will use, defense counsel focus on their future approach to strategic decisions, such as early motion practice, scheduling, developing defenses, and exchange of information among other co-defendants. Utilizing these tactics will assist in appropriately responding to aggression, so that attorneys can best represent their clients and promote justice.

In next month's issue, we will continue our discussion of some of the tactics that overzealous counsel may use, and at some methods for dealing with and counteracting them.

Lori G. Cohen, a member of this newsletter's Board of Editors, is Chair of Greenberg Traurig, LLP's national Pharmaceutical, Medical Device & Health Care Litigation and Trial Practice Groups. She also chairs the firm's Atlanta Litigation Practice, which was recently named as the Daily Report's “Products Liability & Mass Torts Litigation Department of the Year” for 2015. Ritu Kelotra is an associate in the firm's Atlanta office.

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.

Working with so-called “Rambo” litigators can be difficult and frustrating. They are masters at manipulating facts and engaging in revisionist history, and tend to have a “hair-trigger willingness to fire off unnecessary motions and to use discovery for intimidation rather than fact-finding.” Ronald L. Hicks, Jr., Strategies and Tips for Dealing with Dirty Litigation Tactics by Opposing Counsel. Defense Research Institute, 155, 156 (2013). These attorneys will invariably create a more adversarial and contentious experience. Therefore, it is essential that defense attorneys understand the importance of civility in obtaining justice; identify the tactics opposing counsel will use; and develop appropriate responses to those tactics so the focus can stay on the merits of the client's case.

Civility and Justice

Civility in advocacy promotes justice and fairness. As the U.S. Court of Appeals for the Ninth Circuit recently reminded us, the current system may be adversarial, but it is a system that relies on attorneys to treat each other with a high degree of civility and respect. Ahanchian v. Xenon Pictures, Inc. , 624 F.3d 1253, 1263 (9th Cir. 2010). The U.S. Court of Appeals for the Eleventh Circuit agrees: “There is no better guide to professional courtesy than the golden rule: you should treat opposing counsel the way you yourself would like to be treated.” Peterson v. BMI Refractories , 124 F.3d 1386, 1396 (11th Cir. 1997). Put simply: Uncivil conduct is simply unbecoming of the legal profession and impedes the exercise of justice. Recognizing this impediment, the legal profession has responded to the rise of uncivil behavior by adopting numerous state and local bar guidelines on civility and adding civility oaths for newly admitted attorneys, with many states mandating civility.

Guidelines

While civility codes act as guidelines and are not mandatory, they are promulgated by some of the largest attorney bar associations. The American Bar Association, for example, has a Civility Pledge for the use by employers of attorneys (“We recognize that overly aggressive litigation tactics and incivility among lawyers bring disrespect to the legal system and the role of the lawyer, increase the cost of resolving disputes, and do not advance legitimate interests.”); clients of attorneys (same); and judges (“including among judges and between judges and lawyers”). See Civility Pledge, American Bar Association, http://bit.ly/1OuKA17. Similarly, the American Board of Trial Advocates has “ABOTA's Principles of Civility, Integrity and Professionalism,” http://bit.ly/1O1FIfg, which enumerates guidelines regarding general conduct, behavior in court, and judges' conduct. Id.

States also promulgate civility through their bar guidelines. See, e.g., Fla. Guidelines for Prof. Conduct A(4) (“A lawyer should be courteous and civil in all professional dealings with other persons.”); Ala. Code of Prof. Courtesy 4 (“A lawyer should maintain a cordial and respectful relationship with opposing counsel”); see generally Guidelines of Prof. Courtesy and Civility for Hawai'i Lawyers.

Oaths

Several states have also addressed civility through their attorney oaths. See, e.g., S.C Admiss. to Practice Law R. 402(k) (“To opposing parties and their counsel, I plede fairness, integrity, and civility, not only in court, but also in all written and oral communications.”); GA Lawyer's Creed and Aspirational Statement on Prof. (“To the opposing parties and their counsel, I offer fairness, integrity, and civility.”); N.M. Rules. Gov. Admiss. Bar R. 15-304 (“I will maintain civility at all times, abstain from all offensive personality, and advance no fact prejudicial to the honor or reputation of a party or witness unless required by the justice of the cause with which I am charged.”); Utah Rules of Prof'l Conduct, Preamble (“I will discharge the duties of attorney and counselor at law as an officer of the courts of this State with honesty, fidelity, professionalism, and civility.”)

In 2011, the Supreme Court of Florida revised its oath due to growing concerns “about acts of incivility among members of the legal profession.” See In re Oath of Admission to the Fla. Bar, 73 So.3d 149, 150 (Fla. 2011). Florida's high court expressed its desire for the Oath of Attorney administered to new members of The Florida Bar to recognize “[t]he necessity for civility in the inherently contentious setting of the adversary process.” Id. (quoting In re Snyder, 472 U.S. 634, 647 (1985).) The oath now includes pledging “fairness, integrity, and civility.” Oath of Admission to The Fla. Bar.

Mandated Civility

Several jurisdictions, such as South Carolina (via oath, see supra), Florida (via violations of the pre-existing oath, see supra), Arizona (via a rule prohibiting “unprofessional conduct,” defined as “substantial or repeated violations”), and Michigan (via its rules of professional conduct), mandate civility. Further, federal courts have “inherent power” to address attorney misconduct during litigation. See Fed. R. App. P. 46; see also In re Snyder, 472 U.S. at 635; In re Justice, No. 1:11-MC-3, 2012 WL 2374677, at *32 (E.D. Tenn. June 22, 2012) aff'd, 525 F. App'x 291 (6th Cir. 2013) (suspending attorney, requiring forfeiture of 25% of awarded attorney's fees, and authorizing sanctions for discovery abuse in underlying litigation); Molski v. Evergreen Dynasty Corp. , 500 F.3d 1047, 1063 (9th Cir. 2007) (affirming district court's order of sanctions against attorney who filed repeated complaints containing allegation of injuries determined to be contrived and untrue); Moss v. Mackey, No. 1:07CV135, 2009 WL 322046, at *9 (W.D.N.C. Feb. 10, 2009) (requiring attorney to pay opposing counsels' fees and costs for filing frivolous claims).

In 2011, the Northern District of Texas, in Dondi Properties Corp. v. Commerce Sav. & Loan Ass'n,' 121 F.R.D. 284, 286 (N.D. Tex. 1988), made maintaining civility in court mandatory, explaining that such action was needed because “[a]s judges and former practitioners from varied backgrounds and levels of experience, we judicially know that litigation is conducted today in a manner far different from years past. Whether the increased size of the bar has decreased collegiality, or the legal profession has become only a business, or experienced lawyers have ceased to teach new lawyers the standards to be observed, or because of other factors not readily categorized, we observe patterns of behavior that forebode ill for our system of justice. We now adopt standards designed to end such conduct.” The Dodi court, therefore, ushered in a method for courts to establish standards of conduct to be observed in litigation.

A good defense attorney must use civility as part of his or her own litigation strategy. In addition to anticipating the strategies and tactics these aggressive attorneys will use, defense counsel focus on their future approach to strategic decisions, such as early motion practice, scheduling, developing defenses, and exchange of information among other co-defendants. Utilizing these tactics will assist in appropriately responding to aggression, so that attorneys can best represent their clients and promote justice.

In next month's issue, we will continue our discussion of some of the tactics that overzealous counsel may use, and at some methods for dealing with and counteracting them.

Lori G. Cohen, a member of this newsletter's Board of Editors, is Chair of Greenberg Traurig, LLP's national Pharmaceutical, Medical Device & Health Care Litigation and Trial Practice Groups. She also chairs the firm's Atlanta Litigation Practice, which was recently named as the Daily Report's “Products Liability & Mass Torts Litigation Department of the Year” for 2015. Ritu Kelotra is an associate in the firm's Atlanta office.