With the new year and the tradition of making resolutions upon us, lawyers in Ontario may want to reflect on how they can integrate being more civil to opposing counsel and opposing parties into their professional development plans for 2014.
The 2013 year ended with the appeal decision in Law Society of Upper Canada v. Joseph Peter Paul Groia, a case that set a framework for how to balance a client’s right to a zealous advocate against the profession and society’s need for an efficient and respectful administration of justice. Although the Groia case focuses largely on counsels’ courtroom behaviour, the decision identifies some areas in which uncivil conduct out of court may be considered to be unethical behaviour. In particular, the decision references Rule 6.03(1) of the Rules of Professional Conduct that extends beyond counsel’s behaviour in the courtroom to conduct toward an opposing party or another person in any venue. At paragraph 210 of the decision, the panel further reflects on the circumstance of a lawyer using abusive language toward an opposing party and notes how such behaviour may reduce the willingness to participate in the litigation process. The panel makes it clear that being uncivil can really disrupt the administration of justice.
It’s important not to understate the importance of this reflection. There are very good reasons why being helpful, courteous, honest, and fair with opposing parties and counsel can make a person a better advocate. The panel also noted that being nice to each other isn’t all there is when it comes to civility and is a phrase that does not do justice to the ethical and professional obligations owed by counsel. That may be so; however, generally being nice to each other can certainly make you a better advocate in the following ways:
1. The old adage that you get more flies with honey than with vinegar is very applicable during the examination for discovery of an opposing party or a constructive cross-examination. As many counsel will likely agree, the number of times a deponent clams up during questioning in the face of aggression, mocking tones or rude insinuations has been too many to count. The desire to answer shortly with yes or no answers when facing an overly abrasive questioner would seem to be a natural response to feeling as though someone is under attack. In contrast, deponents made to feel comfortable and at ease during an examination will often fill a transcript with facts that hurt their case without thinking twice about it. Counsel would do well to recall that one of the primary goals of conducting an examination for discovery is to obtain information, both good and bad. It is much better to hear deponents’ unlikely explanation for their conduct for the first time at discovery — rather than at trial — and thorough explanations are nearly impossible to obtain from a witness from yes or no responses.
A similar approach can be helpful as part of a cross-examination at trial. A cross-examination can take two general forms: attacking the opposing party’s theory by focusing on a witness’ contentious evidence or constructing a record filled with good facts agreed to by an opposing witness. Cross-examination can be a powerful tool in obtaining admissions that are helpful to your case by getting a witness to confirm facts that are not in hot dispute, are likely undeniable, and further your theory. You can often do this without directly attacking a witness’ version of events or what they’ve said in their examination in chief. With this approach, questioners still use closed questions that require a yes or no response while building a record filled with good facts that further reinforce their theory through repetition.
The disadvantage of this approach is that the Perry Mason-style moment of revelation is unlikely to occur, which therefore reduces the potential for dramatic effect. The advantages to this approach are that the witness will confirm undeniable facts that build your theory (and therefore give more air time to your version of events) and make your theory seem plausible or reasonable to the trier of fact (by having an opposing witness apparently agree with you). You will also prevent the witness from having another opportunity to repeat bad facts over and over again.
2. For many lawyers, the expectation is that this career will last quite a while. One of the most important things to remember is that many local bars are small, especially for counsel practising in specialized areas. A horrible reputation can take a minute to make and the length of a career to erase. Taking unreasonable and unfounded positions with opposing counsel on a regular basis may encourage some to see such a lawyer as a shark or a strong advocate. In most cases, though, it results in counsel deeming that unreasonable lawyer to be difficult and “impossible to deal with.”
Having repeated conflicts with the same unreasonable counsel results in a natural disinclination towards that person. Such a disinclination may take the form of excessive letter writing back and forth to avoid a phone call that could have resolved the issue or a failure to even broach the possibility of a reasonable settlement of a motion or case with a resulting escalation in costs and wasted court time.
Counsel may end up working together on opposing sides for more than 20 years. Working together in those situations can be very helpful to clients and can certainly be the sign of excellent advocacy where they obtain a good result and have saved legal fees in the bargain. The value of being able to discuss the reasonable strengths and weaknesses of a motion or a case with opposing counsel is incalculable over the long run. To some extent, that depends on the reputation and relationships counsel have built by being nice.
3. It is not just the words used but the tone that matters, too. As an example, during the advocacy process counsel can sometimes use an incredulous tone. Lawyers may use that tone in writing or in court when making submissions or examining a witness. When merited and used sparingly, such a tone can be an effective part of the persuasion tool kit. If used too much, however, it grates on the audience. It becomes a droning background noise that obscures the importance it may have for a particular point or purpose. When overused, it can also make counsel look as though they are grasping for straws as a reply instead of dealing with the unlikely fact directly with other evidence or submissions. Sometimes, you are better to leave the unlikely statement you are responding to for what it is: unbelievable on its face. Especially when it is very ridiculous, a better response to an unbelievable statement from a witness during cross-examination is a pause and a nod.
Although being nice doesn’t encompass all of our ethical obligations when it comes to civility and it isn’t always useful to be too nice, the advantages of being kind in word, tone, and deed may be worth considering as a professional new year’s resolution for 2014.
Link information for the end of the story:
For more, see "Groia's appeal accuses LSUC of 'abuse of process.'".
Daniela Pacheco is an associate in the litigation group at Torkin Manes LLP. She practises in all areas of civil litigation with a particular focus on health law.
