by Amy Shayne Levenberg Published April 2014
ABC. Always Be Courteous. In theory, easy to remember. In practice, easy to forget. Professional courtesy, as outlined in the Palm Beach County Bar Association’s Standards of Professional Courtesy, includes things like coordinating scheduling of depositions and hearings, granting reasonable requests for extensions of time, not using discovery to harass or cause undue delay, refraining from criticizing opposing counsel, and not misleading the court. The spirit of professional courtesy is, in a word: cooperation.
While it seems that many attorneys believe that unprofessional conduct will give them some sort of advantage, the truth is, courtesy and cooperation are far more likely to lead to favorable results for clients. In fact, Florida Supreme Court Justice R. Fred Lewis, chairman of the Florida Commission of Professionalism, was quoted in the February 2014 issue of Florida Trend magazine as saying: “[J]udges have to decide cases based on what the law is, what the Constitution is, not based upon the behavior of the lawyer. But I’m going to tell you what: I have seen many, many courtrooms where the obnoxious litigator, the nasty-mouth individual who wants to do anything and everything to win, certainly doesn’t receive any breaks and doesn’t receive the positive end of discretionary type things. It doesn’t help them.”
So how can the ABCs of professionalism help you, your client, and your case? Here are some basic examples:
- · Answer. We all know the routine: you send an email asking opposing counsel if he or she is available on the following dates for a hearing on your motion. No answer. You follow up with a voicemail. No answer. A week goes by, you email again. No answer. Another phone call or email. No answer. You decide to notice the hearing. Finally, an answer – opposing counsel is, of course, unavailable that day and asks that you reschedule the hearing to the latest possible date and time on the list you previously sent. Aside from the rare instances where a two week delay is truly necessary, any benefits to the unresponsive attorney’s client are likely to be minimal. Tactics like these belie professional courtesy, cause nothing but frustration, and waste your time and your client’s money. The better approach is to simply respond and find a mutually agreeable time through cooperation. It is always easier to be the attorney showing the judge your ten emails asking for hearing dates than to be the attorney who never responded. Likewise, before refusing to grant an extension to the other side, remember that you may one day find yourself on the opposite side of that predicament. Professional courtesy dictates agreeing to reasonable extensions when requested by opposing counsel.
· Be the bigger person. If opposing counsel is being obstinate or rude, avoid retorting in kind. Do not criticize or belittle opposing counsel despite the frustrations they may be causing you. Criticizing opposing counsel to the court or to your client only makes one person look bad in the end. If an attorney is constantly belittling opposing counsel to his or her client, lamenting how “bad” opposing counsel is, what will that client think of his attorney who loses an argument to the “bad” attorney? Whatever the true circumstances may be, the client is inclined to think that his attorney must be “even worse.”
Be the bigger person when it comes to discovery disputes and opposing counsel may follow in kind. Cooperation in discovery undoubtedly benefits both sides and saves clients’ money. Courts are loathe to resolve never ending discovery disputes. Moreover, gamesmanship in discovery can sometimes lead to dire consequences. See, e.g., Jones v. Publix Super Mkts., Inc., 114 So. 3d 998 (Fla. 5th DCA 2012) (requiring trial court to impose sanctions and referring matter to Florida Bar where counsel withheld a single witness’s address under the pretense of not knowing it).
· Communicate wisely. Although emails are easy to send, they are impossible to retrieve. Once you hit send, there is no taking back the words you’ve used. Before you send an email to opposing counsel, consider whether you would want the judge on your case to read it. If the answer is no, do not send it. It is easy enough for opposing counsel to attach your email as an exhibit to a discovery motion, so choose your words carefully. A thoughtful, courteous email aimed at cooperation can be a tool that may help you get the decision you want. An email devoid of professional courtesy (that is threatening or insulting) is likely to get you and your client nothing but an angry judge. Or, as occurred in an extreme case, possibly even suspended from the practice of law. See Florida Bar v. Norkin, 2013 WL 5878901 (Fla. 2013) (finding that Norkin’s relentless unethical and unprofessional behavior toward opposing counsel violated Florida Bar Rule 4-8.4(d)).
When in doubt, just remember the ABC’s: always be courteous.