Excessive Advocacy (Read Page 755) *.

• Author: Aronovitz, Tod
• Position: President's Page

All too often, legal practitioners reduce modern-day litigation to ice hockey in business suits.

Litigated matters as well as legally assisted business transactions sometimes result in: 1) public shouting matches; 2) name calling, orally or by written communication; 3) failing to extend a common courtesy in order to gain an advantage; 4) use of a deposition or correspondence to embarrass or humiliate another; and/or 5) using rules of procedure to bludgeon an adversary knowing that one is advocating a marginal legal position.

In a recent commencement address, Supreme Court Justice Sandra Day O'Connor stated:

Clients increasingly view lawyers as mere vendors of services, and law firms perceive themselves as businesses in a competitive marketplace. As the number of lawyers in this country approaches one million, the legal profession has narrowed its focus to the bottom line, to winning cases at all costs, and to making larger amounts of money. Almost every complaint about the decline of ethics and civility "sounds the dirge of the profession turning into a trade."

One lawyer who stopped practicing law explained his decision to leave the profession in these bleak terms: "I was tired of deceit ... many attorneys believe that zealously representing their clients means pushing all rules of ethics and decency to the limit."

Utah Supreme Court Justice Matthew B. Durrant wrote in Civility and Advocacy:

Even more regrettably, I fear that too many lawyers are buying into the notion that incivility makes for effective advocacy. There has been no shortage of articles and speeches calling for greater civility among lawyers. I concur wholeheartedly in that sentiment. Lawyers should see themselves as engaged in a noble profession. They should conduct themselves with dignity and courtesy. They should be invariably honest and straightforward. Why? It should be enough that it is the right thing to do, and a more satisfying way to practice--a better way to live, for that matter. Those whose lawyering strategy is to inflict maximum misery often make themselves most miserable of all. But I write to suggest one additional reason for adhering to the highest standards of courtesy and...