February 2013 Bar Bulletin
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February 2013 Bar Bulletin

Incivility: A View from the Bench

By Judge Richard McDermott


Over the past few months I have been asked to speak at a number of seminars or continuing education meetings on the topic of "Incivility: A View from the Bench." At the beginning of the year, it seems to me that this is a good time to examine our own conduct and make changes if necessary.

First, let me say that the vast majority of attorneys are professional and well behaved. However, my colleagues on the bench and I are observing a trend that is alarming and definitely creates cause for concern - an increasing rudeness and willingness to stretch the truth combined with a basic mistrust of our fellow members of the bar. Perhaps it is a sign of society.

I have always thought that the way lawyers act is often dictated by the way society behaves and the consequent pressures placed upon us to win at any cost. Remember the last election campaign when truth and honesty were somehow forgotten values and the public was left with the impression that fabricating facts and misrepresenting history were acceptable conduct. Please understand that this is not acceptable and that we expect attorneys to adhere to a much higher standard of conduct.

The Rules of Professional Conduct have no specific rule that says, "Treat each other with civility," but there are many RPCs that certainly require it. Yet we see unacceptable behavior routinely. I asked several of my colleagues on the King County bench to send me examples and I was flooded with responses.

Several include arguing with the judge after a ruling has been made, and setting a deposition when one attorney knows the other is going to be out of town (when proper notice had been given), then making a motion for terms when the vacationing attorney failed to appear (even though they had confirmed that they were out of town and not available). Sending mountains of interrogatories and then making a motion to compel when the requesting attorney knows that completion within the given time period would have been impossible is a favorite. Another is when attorney A copies the overly burdensome set of interrogatories sent by Attorney B and serves them back on Attorney B. Of course one of them objects to the discovery as overly burdensome.

A frequent flyer for us is what we lovingly refer to as a "speaking objection." Karl Tegland in Washington Practice seems to have missed this one, but many of you adopt it as part of your standard repertoire. You know what I'm talking about: During trial an attorney objects by telling you whatever information he or she feels is important regardless of the rules of evidence. It is mildly objectionable if this is done only in a non-jury trial, but when this is done in front of a jury, it creates potential grounds for a mistrial.

Several years ago I called two senior litigators into my courtroom because they had several discovery disputes that to me seemed ridiculous. They were not willing to budge off their positions. I thought there was plenty of room for agreement. I suggested they go into my jury room to confer and reach an accommodation. Four hours later they were still at a stalemate. It was 5 p.m. I called my wife in front of them and had her cancel our dinner plans and told them I was prepared to stay until Monday if necessary (it was Friday evening) and that they were not going to leave until an agreement was reached. One of them had an important dinner engagement. I told him I did not care. They were staying. Fifteen minutes later an agreement was magically reached.

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