SC Lawyer, May 2005, #9. The Scrivener - Civility in Legal Writing.

Author:By Scott Moise
 
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South Carolina Lawyer

2005.

SC Lawyer, May 2005, #9.

The Scrivener - Civility in Legal Writing

South Carolina Lawyer May 2005

The Scrivener - Civility in Legal WritingBy Scott Moise"I don't know why this is called 'civil court.' There is nothing civil about it," fumed an associate who was leaving the courthouse recently. His discovery hearing had been contentious, with the lawyers accusing each of other of hiding and altering documents, stonewalling, and outright lying. The oral arguments were preceded by lengthy briefs, filled with the same venom, written in capital letters, bold print, and underlines. The judge eventually lost patience and ended the arguments, but by then, long-term damage between the lawyers had already occurred. Their clients, needless to say, were the real losers.

In South Carolina, the new civility oath specifically addresses writing: "To opposing parties and their counsel, I pledge fairness, integrity, and civility, not only in court, but also in all written and oral communication." Therefore, lawyers and judges in our state must be civil and fair in all their letters, e-mails, pleadings, motions, memoranda, discovery, opinions, and all other communications.

Civility vs. zealous advocacy

The pledge of civility needs to be balanced against our ethical duty to zealously represent our clients, but the two duties do not conflict with each other. By being civil, attorneys do not abandon their goals of winning; instead, they achieve those goals through research, investigation, creativity, and strategy instead of bullying. In achieving the balance between advocacy and civility, lawyers first need to understand the definition of "civility." What is it? Does civility mean one thing in Charleston ("The Best-Mannered City" in the United States) and another in the Midlands or Piedmont? Is civility like Justice Stewart's definition of pornography: "I know it when I see it"? Jacobellis v. Ohio, 378 U.S. 184, 197 (1964).

Although South Carolina courts have not defined "civilility," they have identified specific instances of uncivil behavior. For example, in one case, the supreme court noted " '[t]he extent,the intensity, the sarcasm and maliciousness, the unnecessary combativeness, the gratuitous threatening and intimidation, and the unequivocal bad manners' " of an attorney during a deposition. In re Golden, 329 S.C. 335, 341, 496 S.E.2d 619, 622 (1998) (quoting Greivance Committee Panel). Reported cases, however, concern only the most extreme examples of incivility, which leaves lawyers guessing at what point zealous advocacy crosses the line into incivility.

What is civility?

One court used the dictionary meaning of civility, which is "politeness, especially in a merely formal way." U.S. v. Lopez, 799 F. Supp...

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