"Take care of each other." (relationship between attorneys)

• Author: Pope, Daniel J.

Watching the Super Bowl last January reminded one of the sad state of affairs in that part of the law practice most in the public eye - litigation. As the pre-game shows ended and just before play began, the players were visible in the background. They seemed genuinely fond of each other, they shook hands before the game and smiled. Although the game was hard fought, the players and coaches again shook hands after the game, and many players on both teams knelt in prayer together. It was obvious that they knew they would meet again, some on the same team, some on opposing teams, but they all seemed to respect themselves, each other and their chosen vocation.

There was a time when the practice of law was similar. Courtesy was the rule, and although each day brought a new fracas in the arena, once the "players" were off the field, they were friends, compatriots and members of an elite club. They regularly fought with one another in court, sometimes causing harm on the field, but just as regularly, they walked off arm in arm to share a beer and a good story.

A free for all

Today, while the practice of law seems to have devolved into a free for all, the world of sports, from football to race car driving, seems to have taken on the "all for one, one for all" attitude made famous by the Three Musketeers. Even in the football arena, where the point is to control the movement of the ball at almost any cost, even if it involves knocking others out, football players take care of each other, reaching out to help each other up. Lawyers ought to do no less, but the litigators most in the public eye try to conquer one another from the first step and continue to approach the pretrial practice like a siege, with no quarter given at any point.

As Larry Fox, in an excellent article in Litigation magazine points out, the starter of the Indianapolis 500 reminds the drivers, who may well be the most competitive persons in the world, that no long race is won in the first lap and that jockeying for position early in a 500-mile race is only likely to increase the odds of a fatal accident.(2) Today's litigators have forgotten that a trial is much like a long race or an entire football game. It will not be won in the first lap or on the first play. And just as the football players and race car drivers will face each other again in future games and races, litigators will face each other again and again in future trials. And just as players find themselves traded to other teams, lawyers may find that while on opposing sides in one case, they are co-counsel in another.

Forgetting original rules

Some of today's most visible lawyers seem to have forgotten the original rules of the game: the fight is between clients, not their attorneys. Indeed, this memory lapse has grown so severe that the judiciary has begun to act to research civility in the practice.

The public view of today's courtroom lawyers is that they have lost sight of the basic purpose of litigation: to seek truth and justice. The courtroom is not, and was never meant to be, a place where might makes right. The ideal courtroom is a place where lawyers introduce the characters and give a guided tour of relevant facts to present a story. Because no one party rarely knows the entire story, each lawyer presents his client's side so that the whole truth is ultimately revealed.

To obtain this presentation of facts, litigators engage in a process unknown to almost any other profession - "discovery." But many of today's most visible litigators have forgotten the purpose of discovery. It is to discover, not obfuscate, the facts. In his article, Fox, who is chair of the American Bar Association Section of Litigation, provides striking examples of the ways in which some of today's lawyers work against the discovery process - refusing to agree to extensions even when doing so would not harm their client; demanding definitions of the simplest terms (for instance, "What do you mean by a `meeting'?") during depositions, finding a misstated date owing to an obvious typographical error in an interrogatory, request for admission or request for documents and not correcting it but acting as if no error exits. Worse yet, the introduction of the fax machine has increased the opportunities for many litigators not only to keep, but use, the inadvertent disclosure of clearly confidential documents.

As Fox points out:

There are those who [upon receipt of an inadvertent fax from the lawyer on the other side with the cover sheet that shows it's not meant for them] think the effective litigator has an obligation to use the document and keep opposing counsel blissfully uniformed that it was missent. On the other hand, there are those who recognize, quite correctly, that they have no more right to use or read such a document than they would to rifle their opponent's briefcase left in a conference room during a lunch break at a deposition; those who understand that we must take care of each other.(3)

The result is that@ the entire environment of trial practice has changed. What young lawyers see and hear about most today are the...