PRESIDENT’S MESSAGE: CIVILITY, FOR THE FUN OF IT, by Joel Mark

“Let me get this straight,” I asked Ventura County Bar Association Executive Director and CEO, Steve Henderson. “I have to write a President’s Message every month?” “Don’t worry,” said Steve. “I have tons of articles that other local bar presidents have written to give you some ideas.”

Reviewing the articles, it appears there is some unwritten rule for local bar presidents to write about civility among legal practitioners. And there seems to be a corollary rule that they must be written with great seriousness, as if being civil to our colleagues is as difficult as brain surgery. Frankly, I think it is fun.

It did take me a while to get that civility could  be fun. After all of four months as a lawyer, I was sent to handle the defense of a case in Indio. It was probably only 22 cents over the jurisdictional limit for Superior Court, but I was honored to be entrusted with a Superior  Court case so early in my career. I only found out later that the honor was due to the fact that the case in Indio was pending there in the summer.

In those days, they called you down for a case management conference. The judge would try to get the case settled, and if that failed a trial date would be selected. Perhaps we were $100 dollars apart, but no one was going to push this four-months-a-lawyer around. Finally the judge shrugged his shoulders and said something about how the parties were too far apart, and hauled out his calendar.

“How about trial for the week of August 11?” asked the judge. My worthy opponent quickly responded to His Honor’s question:  No, Herb. That’s the week we all are going fishing in Cabo. Remember?”

“You know, Your Honor,” said Rambo, rethinking the strategy a bit, “I think I will call my client to see if I can get that extra $100 authority.”

After that, I began to see the positive side of civility. I was defending a legal malpractice case where my lawyer client had been hired to sue a lawyer in the United States Virgin Islands for malpractice in connection with the preparation of three long-term leases for hotel properties in St. Croix. By that time, the USVI lawyer who was supposed to have been sued was the United States District Judge for the USVI. And then, my client had not filed the case within the statute of limitations anyway.

With the case being pretty much limited to damages, we still had to go to St. Croix and St. Thomas for eight days of depositions. It turned out to be the eight days my two daughters had contracted chicken pox, so you can imagine just how thrilled my wife, Leslie, was about being home with sick children while I was “working” in the Caribbean. That, however, is an entirely different story.

Since my fare was being paid for by the insurance company, I stayed at a fairly nice hotel with a golf course. Well, actually, it was some clearings in the swamp where they had managed to grow some patches of grass. My worthy opponent was not so fortunate, being on his firm’s dollar. He stayed in town.

We did end up at the same restaurant one night. That time of year the sand fleas were ferocious, and on the balcony railing were strategically-placed cans of flea spray. Upon seeing my worthy opponent discover his can was empty, I took mine over to him. He  thanked me and offered to buy me a drink. That led to me inviting him over for a round of golf the next day before the deposition started at noon. And that led to our settling the case, on the fifteenth swamp, er, hole.

In another case shortly after that, I represented a manufacturer of “intra-ocular solution.” That is the stuff that, in those days, eye surgeons would temporarily put in people’s eyes to keep them expanded while a cataract was removed and then an artificial lens inserted. The allegation was that, when there was a shortage of ingredients, my client had  stopped making enough to fulfill an OEM contract with a distributor.

We had to make several trips to the manufacturing sites in Florida and Kansas and another bunch of trips to depose all the doctors who claimed that they did not get enough of the product to keep up with their

patients’ needs, and thus could not keep up with the payments on their Porsches and Bentleys. Those trips were all across the Sun Belt, where the retirees – and the eye surgeons – resided.

The first trip was a disaster. Counsel and I had made our own travel arrangements and they failed to coordinate. In five days, we were successful actually being in the same city at the same time for only about nine hours of deposition time total.

After that, we agreed to make our travel arrangements together – same court reporter, same flights, same hotels, same restaurants, and even shared a rental car. In the end, we were like the old Looney Tunes cartoon with the wolf and the sheepdog. We each did our best to zealously represent our clients during each deposition, and then it was like we punched the time clock and left “work” talking about each other’s families and what was on the menu at that night’s restaurant du jour. Additionally, our clients enjoyed the efficiencies that our cooperation created for both of them.

By this time, I was convinced that civility was a good thing. However, there was one time after that when I purposefully was not civil. A bank had failed and I represented one of the directors who had been sued by all the widows and orphans who were holders of the bank’s CDs. The defense was that another bigger bank in New York had caused the failure, not the directors’ mismanagement. Actually, I had better make that “alleged” mismanagement. So, I and a bunch of lawyers defending the other directors and the CEO trundled off to New York to depose people at the larger bank. Being relatively young and inexperienced, I let the lawyers representing the major players do all the questioning and objecting. But, at lunch on the last day they started needling me about how the insurance company would never pay my expenses and fees for the trip because I had said nothing on the record beyond my name the first day.

“Oh, yeah?” I boasted. “Just you watch. I don’t care what question counsel utters at exactly 2:30, I’m going to object.” And a small wager was placed against my boast.

At precisely 2:30, opposing counsel, who was the last questioner of the last witness for the last deposition of our trip, said: “I have no further questions. This deposition is concluded.”

“I object!” I shouted.

Amid the peals of laughter among my defense colleagues I was forced to admit when asked for the ground for my objection: “I have no clue.” But, I won the bet.

Civility does not require that we compromise either our clients’ or our own interests. In fact, civility almost always promotes those interests. Civility simply requires that we be respectful of one another as we do our jobs. If we also have some fun along the way, so much the better.

 

Joel Mark is the President of the Ventura County Bar Association Board of Directors through 2013. Although the names have been changed to protect the guilty, all these stories are true, so help me Justice Sotomayor.

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