A New Civility?

I appear in court regularly on my cases, and it is fascinating and frightening to see how the economic crisis is affecting the court system.

Not only are the courts furloughed due to lack of funds to run them, but also, I heard a rumor that LA County is going to lose 111 judges to layoffs, and that only criminal cases are going to continue to get priority. This is going to collide with the law that requires civil cases to be tried within a year of the filing date of the complaint.

More importantly, the remaining civil judges are going to have to absorb the caseloads of the laid-off judges. I wonder how they are going to do it. Judges are already extremely overworked. You can feel them struggling to handle their caseloads and to unload cases. They pressure the lawyers to resolve disputes outside of the courtrooms, and pressure the parties to pay to have private judges decide them.

I appeared at a post-mediation status conference the other day. This is a court hearing where the judge requires all of the lawyers to appear and report the outcome of a mediation. In my case, the parties did not settle their dispute at the mediation, though they spent nine hours and thousands of dollars — between the mediator’s time and the lawyers’ time — trying.

The first thing the judge stated on the record when she saw five lawyers approach the counsel table as she called the case was, “What are you all doing here? How can these parties afford so many lawyers on this type of a case?” One of the lawyers, who appeared by telephone, then made several inflammatory accusations against my clients. The judge ignored these comments and asked her very simple, direct questions about the outcome of the mediation. The lawyer answered with non-responsive, inflammatory accusations.

The judge angrily castigated this lawyer for not “being reasonable or helpful,” and lectured that as an attorney, the lawyer’s role was to help resolve problems rather than make matters worse with such tactics. I have never seen a judge react like this. A month previously, a judge on another case yelled at the lawyers who were in chambers preparing for trial — exclaiming that by doing so, we were simply “rearranging the deck chairs on the Titanic.” He told us that instead, we needed to put our energies into settling the case. This judge made clear his belief that aggressive tactics have no place in a log-jammed courtroom.

There is even less tolerance now for tactics that used to be considered good old-fashioned advocacy. Tactics that used to be considered the norm are by necessity falling by the wayside. The court system was overly congested before, and now, it is going to get much worse. It can not help but profoundly affect the way we advocate for our clients. As a pragmatist, I think that in many situations, this is a good thing. Too often, too much money is wasted fighting over frivolous issues. I agree with Abraham Lincoln, who said: “As a peacemaker the lawyer has a superior opportunity of being a good [wo]man. There will still be business enough.”

We are moving towards a new civility.

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