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INCIVILITY AMONG LITIGATION LAWYERS . Can Great Literature Diagnose and Cure the Disease?. The stock in trade of the great authors is incivility, conflict. Incivility is the crux of human drama . Human drama emerges from human conflict. Incivility is a manifestation of intense conflict.
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INCIVILITY AMONG LITIGATION LAWYERS Can Great Literature Diagnose and Cure the Disease?
The stock in trade of the great authors is incivility, conflict • Incivility is the crux of human drama. Human drama emerges from human conflict. • Incivility is a manifestation of intense conflict. • Our legal system thrives on the drama of conflict. • We celebrate the idea of conflict of opposing views, of the better more truthful view emerging victorious.
LITIGATION IS A CONTEST • IS INCIVILITY INEVITABLE BECAUSE IT IS TOO DEEPLY ROOTED IN OUR COMBATIVE LEGAL SYSTEM?
JUDGES FEEL SORELY AGGRIEVED AT INCIVILITY IN THEIR COURTROOM
Their Cure? Just be Nice!
OR COERCION SANCTIONS. INCIVILITY TO CURE INCIVILITY
DIAGNOSIS OF THE CAUSE OF THE DISEASE Not as easy as a mere Process of elimination.
TRIALS & LITIGATION • Finger-pointing and yelling at deposition does not amount to assault, appeals court says • Posted May 21, 2014 6:15 AM CDTBy Debra Cassens Weiss • A New York appeals court has affirmed dismissal of a lawsuit contending that a onetime Paul Hastings partner committed assault by wagging a finger and yelling during a deposition. • The Appellate Division, First Department, ruled that the alleged conduct by lawyer Allan Bloom doesn’t amount to assault. The court also said a slander claim for alleged defamatory statements by Bloom during the deposition was properly dismissed. • Bloom left Paul Hastings in February to join Proskauer. The $1 million suit by lawyer KenechukwuOkolihad claimed Bloom rushed Okoli during the August 2011 deposition "and began yelling at the top of his lungs and shaking his pointed index finger violently less than one foot from Okoli's face.” Okoli said he responded by slapping Bloom in the face. Okoli also alleged that Bloom defamed him by calling him "uncivilized, ignorant and incompetent.”
LEGAL ETHICSLawyer who ‘incessantly’ disparaged opposing counsel gets two-year suspension Posted Nov 25, 2013 7:15 AM CDT By Debra Cassens Weiss The Florida Supreme court has suspended a lawyer for two years for rude conduct and recommended that the case be studied “as a glaring example of unprofessional behavior.” The court rejected a referee’s recommended sanction for Jeffrey Alan Norkin as too lenient, saying a two-year suspension is appropriate given Norkin’s “appalling and unprofessional behavior.” The ABA/BNA Lawyers’ Manual reported on the Oct. 31 decision (PDF). According to the court, Norkin accused a judge of being at the “beck and call” of his client's opponent in a civil case, yelled in court, and “incessantly” disparaged and humiliated opposing counsel in the litigation. The opposing counsel, Gary Brooks, was 71 years old at the time and was suffering from Parkinson’s disease and kidney cancer. He was a Harvard law grad with a “lengthy and unblemished career,” the court said. Brooks died last year. Norkin was accused of acting improperly toward Brooks when he: • Sent emails to Brooks that said Brooks was lying and disingenuous, his motions were “laughable and scurrilous,” and he will come to regret his “incompetent, unethical and improper litigation practices.” Other emails threatened to seek sanctions against Brooks and advised him to notify his malpractice insurance carrier. • Approached Brooks in the courthouse hallway and said he had confirmed in conversations with other lawyers that Brooks was “underhanded and a scumbag.” Other lawyers were within earshot at the time. The court concluded its opinion with this advice for Florida lawyers: “Competent, zealous representation is required when working on a case for a client. There are proper types of behavior and methods to utilize when aggressively representing a client. Screaming at judges and opposing counsel, and personally attacking opposing counsel by disparaging him and attempting to humiliate him, are not among the types of acceptable conduct but are entirely unacceptable. One can be professional and aggressive without being obnoxious. Attorneys should focus on the substance of their cases, treating judges and opposing counsel with civility, rather than trying to prevail by being insolent toward judges and purposefully offensive toward opposing counsel. ... “Norkin has conducted himself in a manner that is the antithesis of what this court expects from attorneys. By his unprofessional behavior, he has denigrated lawyers in the eyes of the public.” Norkin contacted the ABA Journal and says that he has filed motions for a rehearing, which are pending.
Dr. Rene Girard, a PhD. in French literature, offers the diagnosis. Mimetic Desire
The problem which scapegoating solves is what Girard terms mimesis: an unconscious form of imitation that invariably leads to competition. Girard describes desire as the most virulent “mimetic pathogen.” This idea was simply stated, as long ago as 1651, in Thomas Hobbes’ Leviathan: “if any two men desire the same thing, which nevertheless they cannot both enjoy, they become enemies.” We can see this easily enough at the microcosmic level. If two people share an affinity for each other, they make friends and share their common interests. The problem, Girard writes, is that this very affinity will eventually lead them to desire the same thing and end up as rivals. Two best friends fall for the same woman [Midsummer’s Night Dream]; the affinity quickly turns to antipathy and they end up murdering each other to prove whose desire is stronger An even more common example is when two children are playing with toys: one picks up a toy and instantly the other wants to play with it. A previously harmonious arrangement quickly dissolves into anger and tears. Mimesis is like an endless dance of unconscious imitation in which people find themselves desiring things because they are desired by someone else. “Keeping up with the Joneses”: mimetic desire aroused not by the object itself but by the desire of others for the object. Competition becomes its own end, and the object of desire becomes irrelevant as previously civil neighbors become consumed by rivalry. [Dostoyevky’sThe Eternal Husband. They are now locked into a “negative identity” in which each needs the other in order to feel real. This idea is popular in movies, such as “cop hunts killer” doppelganger narratives, and in comic book characters like Batman and the Joker — opposite sides of a single coin, strengthening and justifying each other through opposition. It is also seen everywhere we look, only not quite so starkly drawn.
Don Quixote is the First Great Western Book on the Incivility and Conflict that Results from Mimetic Desire • Don Quixote imitatesa chivalric knight named Amadis. He always asks himself what would Amadis do and tries to do the same. He desires to do each of the great deeds that Amadis has done so he imagines that a mundane situation is really heroic. But this only leads to unnecessary conflict. • “InDon Quixote, the eponymous protagonist consistently misinterprets his own, his adversaries', and his allies' actions and motives — regularly resulting in apparently unjustified violent actions and consequences. One way of interpreting Don Quixote's tilting at windmills could be as an allegory to promote critical, skeptical, or satirical evaluation of either a hero's motives, rationales and actions. . . .”
“then they came in sight of thirty or forty windmills that rise from that plain. And no sooner did Don Quixote see them that he said to his squire, "Fortune is guiding our affairs better than we ourselves could have wished. Do you see over yonder, friend Sancho, thirty or forty hulking giants? I intend to do battle with them and slay them. With their spoils we shall begin to be rich for this is a righteous war and the removal of so foul a brood from off the face of the earth is a service God will bless." "What giants?" asked Sancho Panza. "Those you see over there," replied his master, "with their long arms. Some of them have arms well nigh two leagues in length." "Take care, sir," cried Sancho. "Those over there are not giants but windmills. Those things that seem to be their arms are sails which, when they are whirled around by the wind, turn the millstone."—Part 1, Chapter VIII. Of the valourous Don Quixote's success in the dreadful and never before imagined Adventure of the Windmills, with other events worthy of happy record.
When we do battle in the law, who are we fighting? Are we a hero slaying giants? Or deluded by false imagination?
Midsummer Nights Dream is a Study In Mimetic Desire Causing Conflict
Desiring a Changeling? • Early on in the play, we learn that Titania has been taking care of a "lovely" Indian boy and spends all her time lavishing him with love and affection (2.1.2). This has caused a huge rift between Titania and her husband Oberon, who wants the boy to be his personal "henchman" (errand boy/attendant). Oberon is also bitter about the fact that Titania keeps the kid to herself while ignoring Oberon. According to Puck, Titania "perforce withholds the loved boy, / Crown him with flowers, and makes him all her joy" (2.1.1). Although the boy doesn't have a speaking role in the play (and doesn't even appear on stage in some productions), he's a pretty important figure in A Midsummer Night's Dream. • What We Know About the Changeling • First things first: who exactly is this little boy and where are his real parents? According to team Oberon, the little boy is a "changeling" Titania stole from "an Indian king" (2.1.2). (Note: Stephen Greenblatt tells us that a "changeling" typically refers to "a child left by fairies in exchange for one stolen, but here [the term refers] to the stolen child." Titaniadoesn't deny that she's got the kid with her, but she tells a different story about how she came to care for him. According to Titania, she used to be friends with the kid's human mother back in India but "she, being mortal, of that boy did die" (2.1.4). Translation: The woman died in childbirth, so Titania is fiercely committed to raising the boy for her friend.
Dostoyevsky The Eternal Husband
Alexei IvanovichVelchaninov is a land owner who comes to Saint Petersburg for a trial about a piece of land. He receives a visit from Pavel Pavlovich Trusotsky, an old acquaintance who recently became a widower. Velchaninov had an affair with Trusotsky's wife Natalia, and he realizes that he is the biological father of Liza, Trusotsky's eight-year-old daughter. Trusotskynow wants to marry Nadia, the fifteen-year-old daughter of a civil servant. Trusotskytakes Velchaninov with him to visit his fiancee, and buys her a bracelet. Trusotsky is ridiculed by Zakhlyobinin's daughters and locked up during a game of hide-and-seek. Nadia gives the bracelet to Velchaninov, asking him to return it to Trusotsky and tell him she doesn't want to marry him. Nadia is secretly engaged to Alexander Lobov, a nineteen-year-old boy. Trusotsky spends the night in Velchaninov's room and tries to kill him with a razor knife. Velchaninov manages to defend himself, injuring his left hand.
Where does a young lawyer learn what to desire as a professional? • The question that this literary tool, Mimetic Desire, analyzes is where we get our desires. Girard’s structural analysis of the great writers and the great books of Western Literature shows that people copy their desires from others. Typically, people imitate the desires of those who have the most prestige. Young lawyers who desire to obtain the prestige of the most prestigious lawyers calculate what it is that affords the prestigious their prestige: Winning, Wealth, Professional Accolades, Membership in Prestigious Organizations or a Sense of Fighting for Justice. These then become their desires. In litigation winning and wealth make for prestige. What we really admire and hold in high esteem is the lawyer who purportedly never loses a case, no matter how difficult and what we really fear is becoming the lawyer who loses all his cases no matter how strong their facts and law. We may not really believe that these lawyers exist but then there comes along a man like Gerry Spence who by he force of his intellect and will simply overwhelms all opponents. When we litigate and hold his up as an ideal we are bound to suffer frustration. We are not like Gerry Spence and when we try to act like him we just make ourselves vulnerable to becoming uncivil in our attempts to imitate him.
How do young lawyers choose their desired end when they first start practice? • MIMETIC DESIRE, THE DESIRE TO IMITATE THE MOST PRESTIGIOUS • WINNING • WEALTH • INTELLIGENCE • Young lawyers have an imagination of what it is to be a lawyer • They hear of lawyers that never lose a case • Gerry Spence is a good example • Texas Lawyer says they get big verdicts because they compete • Best Lawyer in Town
Even the most idealistic are no better than Quixote. Many defenses lawyers belief that all plaintiffs are greedy victim mongers. Many plaintiffs lawyers see defenses lawyers as ….. This leads to false suspicions about motives
“My Tender Age in Sorrow Did Begin.”George Herbert, “Easter Wings” • My First Deposition • My refusal to give back an inadvertently disclosed privileged document. • I am accused of assaulting a witness in a deposition. • I am sarcastic about an opposing lawyer’s stupid argument. • I refuse to grant an extension of time.
Now we now the disease, is it curable? What can we stop doing? • Stop Looking at the Law as a Competition • The Competition is Not Much More Significant Than Cutting Somebody Off in Traffic So You Can Be One Space Closer to the Destination • Stop Looking to the Law for Validation of Your Intelligence • Stop Letting Other Lawyers or Judges Make You Feel Foolish • There will always be someone smarter than you and dumber than you. Do your best to solve the problems that your work presents, using your unique talents and personality. • Stop Looking at the Law as a Ways to Get Rich • Stop Looking at the Law as a Way to Get Prestige
Now we now the disease, is it curable? What can we do? • Start Looking at the Law as an Interesting Search for the Truth • Cooperate with Opposing Counsel to Find out the Truth • Do Not Fear the Truth Even if It Hurts Your Case • Start Looking at the Law as an Opportunity to Serve a Person Who is in Trouble • Suggestions?
