Youtube: https://www.youtube.com/watch?v=994eILI1m0c
28mins
Michael Ehrenstein 00:01
And good morning. My name is Michael Ehrenstein. I’m the current president of the LCA for 2022. And I’m joined by President elect Adam Arceneaux, who is a partner at Ice Miller. He’s chair of Ice Miller’s commercial litigation practice group.
Michael Ehrenstein 00:20
And the the topic we’re going to discuss today is civility or courtesy in our profession. Very briefly, a few words about Adam, who as nice a guy as he is, is actually a hard nosed, tough commercial litigator.
Michael Ehrenstein 00:40
He has led class counsel in eight significant class action lawsuits. He’s litigated in 22 states, and he specializes in, among other things, dealing with emergency relief. Not a place where snowflakes dance frequently.
Michael Ehrenstein 00:59
And yet, even Adam’s adversaries have to concede that he is one of the nicest, most courteous, most polite people, let alone lawyers, people they’ve ever met. And so this is a topic in which I’ve been interested.
Michael Ehrenstein 01:20
I’ve always thought a little bit about civility and courtesy as being the same. And so when I first started talking with Steve Henry about this, I was using the word courtesy because courtesy I have a martial arts background.
Michael Ehrenstein 01:38
Courtesy is one of the eight virtues highlighted in the code of the Bashida, in the code of the samurai. And to us, courtesy means having a view and concern for the feelings of others. And I think it’s related to civility, but to me, civility is a little bit different.
Michael Ehrenstein 02:03
So, Adam, why don’t we start there? Tell us a little bit about what you understand or how you view the definition of civility.
Adam Arceneaux 02:15
Well, Mike, first of all, it’s good to see you, and thank you for inviting me to be on this program at the outset.
Adam Arceneaux 02:22
I want to say, when I was considering the audience, which is the Litigation Council of America, I think you could have called on any fellow within the LCA, and he or she would have been able to speak eloquently.
Adam Arceneaux 02:35
And from experience on civility, it’s one of the hallmarks of this organization and one of the reasons that I’m proud to be part of it. To me, civility is good behavior for the good of a community. That’s a very broad, general definition.
Adam Arceneaux 02:53
And I think where people make a mistake is to equate civility with simply being nice, simply having manners. Civility does not mean equivocation at all. It does not mean simply getting along. To get along or agreeing to be agreeable.
Adam Arceneaux 03:14
Let’s face it, if there were not a dispute, a hotly contested dispute between two or more parties, we wouldn’t have a job to do. And the way in which we do that job is to do it effectively. But with civility, it serves the court well.
Adam Arceneaux 03:34
It serves our client well. It serves our professional well.
Michael Ehrenstein 03:38
That’s an interesting thing that you said. It’s not agreeing to be agreeable just to get along. You still have a job to do, and your job includes going to battle in the courtroom.
Michael Ehrenstein 03:54
So, in exercising your duties as an advocate you have the obligation to be a zealous advocate, right? So where do you draw the line between zealous advocacy and incivility?
Adam Arceneaux 04:14
Well, interesting thing about zealous advocacy that has become a catch phrase and I would submit almost an urban myth within the legal profession.
Adam Arceneaux 04:26
First of all, the concept of zealous advocacy doesn’t mean that lawyers run around acting like zealots. A few might, but it’s not what it meant. But here’s the interesting thing. I bet if we were to put this on a quiz many, including me before I looked into it, would flunk the quiz.
Adam Arceneaux 04:43
The phrase zealous advocacy is not a part of any model rule of professional conduct. Never has been. Where the phrase comes from is four places. If you read the ABA Model Rules three times in the preamble and once in the comment to Rule 1.3 having to do with the diligence.
Adam Arceneaux 05:09
And so the phrase has taken on more importance and more urban mythology than it probably deserves. In fact, the interesting thing is four states Arizona, Ohio, Indiana and Washington have removed the phrase zealous advocacy from their respective versions of the adopted model rules and comments.
Adam Arceneaux 05:35
So it’s not part of the rule in any of the states. In four states, they’ve removed it from the comments. And the interesting thing is what those four states replace the phrase with words like effective conscientious and ardent diligent.
Adam Arceneaux 05:54
I think those phrases more accurately describe our duty as attorneys and advocates as to how we’re to do our job. So to get to your question, how do you balance that the zealous advocacy, whether the word zealous is used or not, and the requirement of civility, which is also highlighted in the preamble to the model rules.
Adam Arceneaux 06:18
I don’t think they’re mutually exclusive. In fact, I would argue that being a zealot is the antithesis of being an effective advocate for us a little bit. Sure. To be an effective advocate, we all know the first and foremost thing we want to do is be prepared, be exceptionally well prepared, not only for our clients case, but anticipating the opposition’s case.
Adam Arceneaux 06:53
After all, our job as advocates is to marshal the facts, marshal the law, and tell the client’s story in a compelling fashion so that the finder of fact, judge or jury is persuaded that, yeah, our client deserves to win.
Adam Arceneaux 07:13
And they’re persuaded by our conveying the story of how the facts and the law come together to make that case resorting to bombastic tactics, accusing your opposing counsel of dastardly deeds. I’ve really seen that to be effective.
Adam Arceneaux 07:36
In fact, usually I see it backfiring, and I don’t think that’s effective advocacy.
Michael Ehrenstein 07:44
On the other side of that coin in being able to effectively tell your story. One of the things that I’ve seen is that to be an effective advocate, you need to really be able to understand your adversary story.
Michael Ehrenstein 08:02
And I think civility, the formalities of politeness and courtesy go a long way to keeping you open minded enough to actually understand where the other side is coming from so that you can most effectively advocate for your side and also so you can most effectively counsel for your side.
Michael Ehrenstein 08:23
You can give advice. Their story might make a little bit of sense. Right. So in balancing effective advocacy and the requirement of civility, you think that the two, if I’m hearing you correctly, actually are aligned.
Michael Ehrenstein 08:48
It’s not like you have to balance them. They both are moving towards accomplishing the same goal.
Adam Arceneaux 08:54
I think that’s absolutely right. And to pick up on something that you mentioned, I don’t see how one could be an effective advocate without also being an effective listener.
Adam Arceneaux 09:06
And so I think the two go hand in hand. Absolutely.
Michael Ehrenstein 09:14
You gave us a really nice definition of civility when we started, and I’m curious if you could provide us with sort of baseline categories of conduct that actually help us be civil or act with civility in our profession.
Adam Arceneaux 09:36
Well, I think there are several examples, and it’s doing the simple things, right. Showing up on time, answering phone calls and emails, promptly addressing people in a respectful tone. Again, the witness on the stand might be lying like crazy.
Adam Arceneaux 10:01
Let their lies tell the story. You don’t have to start pounding your shoe on the table, your fist, or raising your voice. Let their own words do the deed. Showing respect for the court and the court staff.
Adam Arceneaux 10:23
It always astounds me if I observe somebody mistreating a court bailiff or court reporter. They talk to the judge. They all know who mistreats them, and it doesn’t serve anybody well. Essentially having the basic respect for others involved in the proceedings that you would expect them to show to you doesn’t mean that when we’re on the stand or in deposition that we’re not going to ask questions in a very pointed and direct way, but it does mean that we’re going to do so within the confines of expected of the legal profession.
Michael Ehrenstein 11:05
Can you give us an example from your experience of civility that was accorded to you by somebody else that really made you go, you know what? That guy or that woman was a consummate professional.
Adam Arceneaux 11:26
The one that comes to mind happened very early in my career.
Adam Arceneaux 11:32
I was a young associate going to court to argue a motion all by myself. I was really excited about this, and the opposing counsel was a more experienced litigator. And so we went to court, we argued it.
Adam Arceneaux 11:47
The judge took the case under advisement, left the bench. And my opposing counsel walked up to me, looked me in the eye, shook my hand, and said, Good job. It was that simple of a gesture that resonated with me, because the minute he did it, I thought, that’s exactly what we teach our kids at the end of a game or a match.
Adam Arceneaux 12:11
We teach them to shake hands with the other team and say, good job, well played, good game, and that simple act made me feel really good about the profession as a younger attorney, and believe me, I’ve had a great deal of respect for that attorney.
Adam Arceneaux 12:28
He and I have become friends over the years. I’ve referred cases to him, he’s referred cases to me, and it didn’t cost him a thing. So something just as simple as that, I think is a good example. And in a more recent case, it was a run and gun TRO.
Adam Arceneaux 12:48
Trade secret, non compete competitors going at each other’s throats. And so I was the guy who filed the TRO, of course, on a Friday afternoon, as we always do. Just always works out that way. And I’m just waiting to see, okay, who’s it going to be?
Adam Arceneaux 13:11
Who’s the other side going to hire? Because I had no clue. And the other side, it was the new employer, represented by one attorney, and then the employees, represented by separate counsel and both excellent attorneys.
Adam Arceneaux 13:28
And from the get go, we had an initial call, and we agreed, because we had all been through this fire drill before, that no matter how much the clients hate each other and want to kill each other, we’re going to try this case the right way.
Adam Arceneaux 13:43
And it set the tone for the entire case that we advocated. Like crazy, we made. Arguments on both sides. But we never had a problem with things like agreeing to a deadline for expedited discovery, scheduling depositions.
Adam Arceneaux 13:59
If we needed to move things around, a phone call took care of it. In fact, there was a time in the case where my opposing counsel had a young associate who had never been in trial before, never been in an evidence shery hearing before, was given a witness to put on the stand.
Adam Arceneaux 14:20
And it was his first time. He was trying to get into evidence one document, and I had to object because he hadn’t laid at a foundation for it or done anything. And he’s struggling a little bit. The judge is looking at me.
Adam Arceneaux 14:36
And so I decided this document really doesn’t mean diddly to the case. It’s not important. So I said, Your Honor, if Mr. So and So would ask the following two questions, I think we could move along. And the the young man was able to lay the foundation, and he got the exhibit into evidence.
Adam Arceneaux 14:58
It was like he had just been given the keys the car to drive. And of course, on cross examination, I had two questions that enabled me to make the point I wanted to make. So it worked out fine, but it’s just an example of part of civility is which battles are truly battles and what doesn’t matter, and picking and choosing your fights and your battles and exhibiting gracious behavior when you can.
Michael Ehrenstein 15:29
How about the opposite of that have can you think of without naming names, of course? Sure. Any completely atrocious, uncivil conduct that you’ve had to deal with and compare it?
Adam Arceneaux 15:42
Well, I’m going to give you two examples.
Adam Arceneaux 15:44
One that was directed torpe and the second that was directed, surprisingly, at the court. The one that was directed at me. Again, it was a case where former officer and director of the company had gone off and done allegedly disastrous things.
Adam Arceneaux 16:01
And so we had filed a lawsuit. His attorneys were taking a scorched earth, no holes barred approach, I think driven by the personnel of their client. And they filed a motion for summary judgment which resembled nothing like I had seen before because it was very light on facts of the case or even law, but laden with personal attacks on me for having the audacity to file a lawsuit in the first place.
Adam Arceneaux 16:36
And it did everything but mentioned the horse I rode it on. So we filed a very conservative, concise response. We get to court and the judge, who is well known here in town, took the bench. He looks at me and he smiles and he says, Mr. Arceneaux, I didn’t know whether I should have you appear or have you arrest. And then he chuckled. And then he looked at the other side. There were four attorneys at the table and said, which one of you wrote this brief?
Adam Arceneaux 17:08
The lead counsel stood up and started talking about teamwork. The judge wasn’t having any of that. The judge said, no, no, I want to know which one of you wrote this brief and lead counsel fessed up to it.
Adam Arceneaux 17:20
The judge then gave a very measured lecture about how that type of brief not only is inappropriate violates the rules of professional conduct, but is totally unhelpful to the court. And the judge said, What I want to read is what are the undisputed facts?
Adam Arceneaux 17:38
What’s the standard of review? What’s the legal argument? And why do you think your client should win? That’s what I need to know. This brief doesn’t tell me anything. And so what the judge did, he said, I’m going to strike this brief.
Adam Arceneaux 17:52
I’m going to give you 30 days to file a new brief that comports with all the requirements of the trial rules and also the requirements of civility, which I thought was a fair thing to do. I thought it was gracious of him.
Adam Arceneaux 18:06
And so I thought, okay, we’ll get a brief in 30 days. Here’s the shocker. Instead of filing a new brief, the opposing party filed a complaint with the Indiana Supreme Court Disciplinary Commission against the judge.
Michael Ehrenstein 18:23
Oh, my goodness.
Adam Arceneaux 18:25
The case did not get better for them. That’s an example, a very extreme example, but it goes to the next example, which, Michael, I don’t know if you’ve seen this, but I’ve seen this more and more frequently over the past several years, and that is council showing incivility, whether microaggressions were major ways to the courts.
Adam Arceneaux 18:50
And I don’t understand it. I don’t understand where it’s coming from, but it never ends well. And to give you a recent example, this was in the Indiana Court of Appeals. Our client had won a preliminary injunction, 63 page ruling by the trial court judge.
Adam Arceneaux 19:10
The other side appealed. We had a hearing. The Court of Appeals affirmed. So the appellant filed a motion to reconsider, which was unlike anything I had ever seen. Just over the top statements and accusations not directed at me or my client, but directed to the court.
Adam Arceneaux 19:32
And so I was very interested to see how the Court of Appeals would handle it. One of the judges on the three judge panel is somebody I’ve known for for a number of years. As had opposing counsel, by the way, Michael, I don’t know.
Adam Arceneaux 19:49
Have you ever seen a video where celebrities read mean tweets? They read all the mean stuff that people tweet about them, and it’s kind of humorous, right? Well, the Court took a similar approach. What?
Adam Arceneaux 20:01
The court did. It’s a one page order. The Court quoted verbatim from appellant’s brief. This is just funny. Quote, this opinion provides sue Esponte the most efficient and defective due process waiver analysis in the history of Indiana jurisprudence.
Adam Arceneaux 20:23
Astonishing material, inaccuracies, and significant errors in the entire history of Indiana jurisprudence. No opinion has been so cursory and deficient in its legal analysis. Those are direct quotes from the appellant’s brief.
Adam Arceneaux 20:40
And then the Court of Appeals in one paragraph says, the appellant claims to be mindful of the limitations of criticism for Council. Apparently not. We encourage Council to use more respectful and measured language in the future and by separate order, deny the request for oral argument on rehearing.
Adam Arceneaux 21:02
Our decision stands. Petition for rehearing denied. Very elegant way of addressing that. And, Michael, I don’t know if you’ve seen examples of incivility towards the courts, but I think in my analysis, maybe off on this.
Adam Arceneaux 21:24
I think what brings it on is maybe a combination of lack of preparation by the Council, lack of confidence in his or her case, maybe a feeling of being cornered and lashing out emotionally. The columnist Anne Landers had a famous piece of advice.
Adam Arceneaux 21:51
Write the letter you want to write, sleep on it, tear it up the next morning and write the letter you should write. And maybe we all could take that advice to heart.
Michael Ehrenstein 22:03
Or at least some of the folks that have been that critical of the courts.
Michael Ehrenstein 22:08
Yes, I’ve seen some of that as well. Not as much perhaps, as you have, but it is really unfortunate. So with all of the from the war stories that you just told, from the case that went up on appeal to the very gracious civil conduct that you told us about in the prior examples, what lessons can we take from this as to why civility is really important in our profession?
Michael Ehrenstein 22:49
When I went to law school, I don’t recall a class discussing the importance of civility. I took legal ethics like everybody had to, but ethics was not there was no focus on a baseline of civil conduct.
Michael Ehrenstein 23:07
And why is it important? So I was wondering if you could share with us your views on not just that it’s the right thing to do, but why is it important? Especially in the pressure cooker of a courtroom where, yeah, people can feel cornered and people can feel like they don’t have any other alternatives but to be uncivil.
Michael Ehrenstein 23:28
Why is it important to maintain civility?
Adam Arceneaux 23:31
Well, there are so many reasons. I’m going to focus on three. First, the legal profession is somewhat unique in that it is largely. Self regulated and self governing.
Adam Arceneaux 23:44
There’s no judge in the room when we’re taking a deposition. What happens in the courtroom? The judge is going to rule on whatever motion is pending, but is not going to rule susponte on violations of the rule of professional conduct that would come from another body later.
Adam Arceneaux 24:05
And so it is critical to the functioning of our legal system, and especially in litigation, that the attorneys accord themselves with decency and with civility. Otherwise the wheels fall off, the litigation drags on, it gets more expensive for the parties, and quite frankly, it just isn’t effective.
Adam Arceneaux 24:30
So I think we owe it, all of us, to the legal system. A second reason that I think it’s important is the legal profession. As I’m sure we each know, it takes a lifetime to earn a reputation. It takes 5 seconds to destroy it.
Adam Arceneaux 24:55
And when you accumulate all of our reputations, that’s the reputation of the legal profession. And if we want the legal profession to be respected, we need to conduct it in a way that’s respectable and that includes civility, especially for people who are on the periphery, who really don’t have a dog in the fun.
Adam Arceneaux 25:22
Third party witnesses, jurors parties who are corporate representatives. All of these people, this may be their first, last, and only exposure to the legal system and to our profession. We want it to be one that they come away going, well, I hate the result, but at least I was treated with respect, or whatever the case may be.
Adam Arceneaux 25:51
It’s the old Maya Angelou saying, which I’m going to paraphrase. You know, ten years from now, people may not remember what you said to them, but they’ll never forget how you made them feel. And there’s no reason to make a witness or feel anything other than respected and valued.
Adam Arceneaux 26:10
The third reason is much more personal and it’s much more pragmatic as litigators. It’s not an easy job. There is enough stress juggling however many dozens or hundreds of files that we have, however many deadlines we have, the demands of clients expecting immediate responses and great results, and all the added pressure, incivility, unnecessarily, adds to that stress.
Adam Arceneaux 26:44
We owe it to each other as professionals not to add that unnecessary stress. I am all for adding necessary stress, by all means, but acting in civilly towards a fellow litigator is not something that I want to do, quite frankly.
Adam Arceneaux 27:04
We’ll live longer and happier, more fulfilled lives, if we’re civil to one another.
Michael Ehrenstein 27:11
Adam, thank you so much for spending this time with us and sharing your views about stability with us. In the Bashido, we show courtesy by giving a bow. Thank you.
Adam Arceneaux 27:27
Very good.
Michael Ehrenstein 27:28
Thank you so much. This was really, really great. I appreciate it.
Adam Arceneaux 27:33
Well, thank you. And hopefully we’ll be seeing each other in person at some point in the near future, but I appreciate this opportunity to speak to some of my friends by video.
Michael Ehrenstein 27:45
Awesome. Thank you. Take care.
Adam Arceneaux 27:47
All right, thanks.
