Defining Incivility in a Pandemic

We are re-examining litigation practices through the prism of a global pandemic. Courts are issuing orders designed to keep the public and court personnel safe while still delivering essential court services. Lawyers are representing clients and trying to make a living despite courts that are only hearing emergency or essential business. But where are we drawing the line on what constitutes emergency or essential business?

Judges Make the Tough Call

Right now, it’s up to judges to make the hard calls. Judges must balance the physical health of the public, courthouse staff, litigants, and lawyers with their mandate to deliver justice for the benefit of the public. Most federal and state courthouses are running on skeleton operations, handling only emergencies and essential court business. That means judges are postponing trials, extending deadlines, relaxing paper filing requirements, and holding virtual hearings. At the same time, some judges are criticizing lawyers for being too aggressive in their client advocacy, asking them to consider the pandemic.

Last month, a federal district judge in Chicago issued a scathing order that gained widespread support on social media in what has become known as “the unicorn case.”  The plaintiff company, creator of “life-like portrayals of fantasy subjects” such as elves and unicorns, sought a temporary restraining order in its trademark infringement suit against companies it alleged were selling counterfeit unicorn drawings. The judge deferred the hearing for a few weeks and plaintiff’s counsel moved for reconsideration on an emergency basis. In denying the motion, the judge noted that the plaintiff had not demonstrated that it would suffer an irreparable injury from waiting a few weeks and that the worst-case scenario is that the defendants “might sell a few more counterfeit products in the meantime.” He went on to comment, “One wonders if the fake fantasy products are experiencing brisk sales at the moment. The world is facing a real emergency. Plaintiff is not. The motion to reconsider the scheduling order is denied.”

Similarly, a magistrate judge in the U.S. District Court for the Southern District of Florida issued a scolding order in a case alleging a sexual assault on a cruise ship. After detailing the effects of the pandemic, including jobs and lives lost, stock market plunges, anxiety and uncertainty, the judge noted that a spat over the scheduling of a deposition is not an emergency, but a routine matter.

He expressed “shock” that counsel couldn’t resolve the issue, noting that counsel “had failed to keep their comparatively unimportant dispute in perspective” by exchanging “snippy emails.” In case any ambiguity remained, the order explains, “If all the issues we are currently facing were to be organized on a ladder of importance, this deposition-scheduling dispute would not even reach the bottom rung of a 10-rung ladder.”

The same judge had a similar reaction to a defendant’s refusal to agree to adjourn discovery deadlines and a trial date in light of the pandemic. The judge is quoted as saying, “I had to read the certification twice in order to make sure I was reading it correctly. If the motion is correct, then Defendant wants to push forward with the existing trial date and all trial-related deadlines even though no one has any idea when the Court will be able to safely resume jury trials (or when it will be safe to travel by air, to return to work or to get closer than ten feet to anyone).”

The magistrate judge required defense counsel to file a memo explaining whether he did in fact oppose the motion and if so, provide a “comprehensive and rational explanation.” He went on to warn, “Before filing this response, though, defense counsel may want to brush up on the concepts of karma, goodwill, grace, compassion, equity, charity, flexibility, respect, spirituality, selflessness, kindness, public spirit, social conscience, and empathy.”

As someone who regularly advocates for judicial leadership in stemming incivility, I applaud these judges for taking attorneys to task for needlessly pushing forward despite COVID-related orders that restrict non-essential matters. However, the orders give me pause. There may be something else going on.

Judges Should Exemplify Civility

These judges don’t seem to be concerned with incivility. In fact, the language used in the orders is harsh and arguably uncivil itself. Judges are charged in Canon 3 of the Code of Conduct for United States Judges to be “patient, dignified, and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity…” The language in these orders isn’t that.

I’m concerned that the tone and content of these orders undermine the notion that justice is blind. The words inscribed on the Illinois Supreme Court building come to mind: “audi alteram partum” or let the other side be heard as well. While judges need to decide what constitutes an emergency, the language chosen to communicate this shouldn’t convey a derogation of a party’s right to be heard based on the content of the dispute.

Derisive language characterizing a non-emergency, especially with respect to the unicorn case, signals a value judgment on behalf of the judge. One might infer that the judge did not have high regard for the subject matter of the lawsuit. To the plaintiff company producing unicorns, this may be an emergency. Perhaps its livelihood and that of its employees is at stake.

Now, as always, we must ensure that our judicial system treats the rights of all citizens equally. It may be tempting to cut corners in a crisis. But the principles of our democratic republic must be upheld in times of war, peace, pandemic, and well-being. Otherwise, the integrity of our judicial system is undermined and we all lose. So, in addition to considering the health of the public, judges must also consider the health of our justice system as a whole.

The Lawyer’s Perspective

Lawyers are navigating competing priorities as well. Attorneys must balance their obligation to advocate for their clients with the realities of the pandemic.

“Lawyers need to be more practical,” explained Erika Harold, an attorney at Meyer Capel in Champaign, Illinois. “This means lawyers must ask themselves: will the judge view my request as an emergency? If they think the judge will not, next they need to determine what alternative steps should be taken.” This analysis is making clients and lawyers more inclined to try to resolve things informally, Harold said.

Recently, a statement by the Los Angeles County Bar Association’s Professional Responsibility and Ethics Committee called for lawyers to exercise restraint in pressing for advantages during the pandemic and to agree to reasonable requests to avoid in-person meetings:

“In light of the unprecedented risks associated with the novel Coronavirus, we urge all lawyers to liberally exercise every professional courtesy and/or discretional authority vested in them to avoid placing parties, counsel, witnesses, judges or court personnel under undue or avoidable stresses, or health risk. . . Given the current circumstances, attorneys should be prepared to agree to reasonable extensions and continuances as may be necessary or advisable to avoid in-person meetings, hearings or deposition obligations.”

Maybe these accommodations should happen all the time. Regardless of the coronavirus, it’s civil to extend professional courtesies to avoid placing parties, counsel, witnesses, judges, or other court personnel under avoidable stress. Perhaps this pandemic is bringing behavior lawyers should be embracing into sharper focus.

For example, Atlanta attorney Pete Werdesheim includes this language in retainer agreements, regardless of the times:

“You further agree to be truthful and cooperative, promptly respond to inquiries and communications, and provide us with necessary information and documents. And you acknowledge an understanding that we retain control over certain decisions that affect our ability to deal professionally with opposing counsel and parties, such as deadline extensions, cooperation in scheduling, and the tone of correspondence and pleadings.”

Perhaps the coronavirus pandemic will teach us that civility and professionalism should always be embraced as winning strategies for representing clients. One can only hope.

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