People often assume a good lawyer is one that is aggressive and “mean.” In business litigation, where animosities run high on both sides, they may even appreciate if their lawyer is an a**hole. However, aggressive or diligent litigation does not require lawyers to act unprofessionally or with a lack of civility. More importantly, failure of lawyers to act civilly provides no added value to the client, and in fact, can materially detriment a client’s case.
This is Part 1 of a series of articles about the “Hard Truths of Business Litigation.” This article focuses on the importance of civility in the practice of law, and thus, why your lawyer’s adherence to civility should matter to you. For instance, in 2023, the CA Court of Appeals affirmed a ruling cutting over $450,000 in an attorney fee award “to account for [p]laintiff’s counsel’s … lack of civility throughout the entire course of this litigation.” Snoeck v. ExakTime Innovations, Inc., 96 Cal.App.5th 908, 911 (Cal. Ct. App. 2023)
The practice of business litigation often feels like navigating a battlefield. Opposing parties clash over high-stakes disputes, with attorneys zealously advocating for their clients. Yet, amid this inherent conflict, the importance of civility has never been clearer. In California, new rules and guidelines emphasize civility as a professional obligation—and as a critical factor in achieving successful outcomes for clients.
Civility: A Professional Imperative
Recent amendments to the California Rules of Professional Conduct and the introduction of new civility requirements reflect the legal profession’s growing recognition that incivility undermines both the justice system and the attorneys who practice within it. Effective January 2025, attorneys must complete a minimum of one hour of civility-focused Continuing Legal Education (CLE), reaffirm their oath of civility annually, and adhere to rules emphasizing dignity, courtesy, and integrity.
These changes underscore a hard truth: incivility is not just a matter of decorum. It can derail litigation, escalate costs, and damage an attorney’s reputation. Cases like Karton v. Ari Design & Construction, Inc. and Snoeck v. ExakTime Innovations, Inc. demonstrate how courts are holding attorneys accountable for uncivil conduct. In these instances, courts imposed sanctions or reduced attorney fees because of the uncivil conduct by the attorneys themselves, highlighting the tangible consequences of abrasive behavior by counsels.
Why Civility Matters in Business Litigation
- Preserving Credibility: Judges and juries are human; they respond to professionalism and respect. An attorney who engages in personal attacks or displays hostility risks alienating the decision-makers who determine their client’s fate.
- Efficiency and Cost-Effectiveness: Incivility often results in unnecessary motions, delays, and disputes over trivial matters. Such inefficiencies drive up costs for clients. Indeed, given that business litigation can be extremely costly, it is imperative that your counsel does not engage in conduct that creates needless expense, delay and waste. Further, wasteful motions are not well received by Judges because they strain court resources.
- Client Relationships: Clients value attorneys who advocate zealously but responsibly. Uncivil conduct may reflect poorly on the client, damaging their reputation and business interests.
- Professional Integrity: As officers of the court, attorneys have a duty to uphold the justice system. Civility fosters a more just and equitable legal process.
Practical Tips for Cultivating Civility
The transition to a more civil litigation culture requires conscious effort. Here are practical steps attorneys can take to align with the profession’s evolving standards:
- Set the Tone Early: Establish a professional rapport with opposing counsel from the outset. Demonstrating respect can encourage mutual cooperation, even in contentious disputes.
- Pick Battles Wisely: Avoid unnecessary objections or motions. Focus on issues that truly advance your client’s interests rather than indulging in adversarial tactics for their own sake.
- Model Respect in Communications: Whether in court, depositions, or written correspondence, maintain a tone of courtesy. Avoid personal attacks, inflammatory language, or sarcasm.
- Comply with Discovery Obligations: Stonewalling or withholding information may provide short-term advantages but risks sanctions and damages long-term credibility.
- Leverage Civility CLE Training: Use mandatory civility CLE requirements as an opportunity to reflect on your own practices and learn strategies for improving interactions with colleagues and the court.
The Road Ahead
Civility is no longer a “nice to have” in the practice of law—it is a professional and strategic imperative. California’s new rules are a step toward fostering a legal culture where civility enhances the administration of justice. For attorneys navigating the hard truths of business litigation, civility is not just an ethical obligation but a pathway to more effective advocacy and better outcomes for clients.
By embracing these principles, attorneys can improve not only their own practice but the standing of the legal profession as a whole. In an era where incivility has become all too common, striving for dignity, courtesy, and integrity can set an attorney apart as a true professional.