"Civil" Law

September 1988

I’m selecting a jury on a case against two chiropractors.  They are insured by a specialized professional liability carrier which means that I don’t know the carrier and I don’t know the lawyer that they have hired to defend their insureds.

I have spoken to colleagues about my adversary and have learned that he often makes accusations of ethical violation against opposing lawyers and in general is an unpleasant fellow to deal with.

A question has come up during Voir Dire that we cannot resolve on our own.  In civil cases a Judge is usually not present, but is available to rule on such questions.  They typically involve whether a juror should be excused for cause or whether a particular comment made by an attorney was inappropriate.

We go upstairs to the Courtroom and notify the clerk that we need to see the Judge for a jury ruling.  The room is crowded with attorneys because it is a motion day – a day set aside by the Judge to hear lawyers argue motions which have been made on paper.  We are told to wait in the courtroom.  Eventually, the name of our case is called and we rise to enter the well of the courtroom[1] so that we can enter the Judge’s chambers.  I hold open the swinging door to allow my adversary to enter.  He approaches me nose to nose as I am doing so, and growls at me: “You don’t fool me with your phony nice guy act”!

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This is the incident that I call to mind when the Chief Judge finds it necessary in 1997 to publish a document entitled “Standards of Civility”.

The community of attorneys who prosecute and defend physicians and hospitals in the metropolitan New York area is a relatively small one.  You come into contact with the same firms and many of the same attorneys on a fairly regular basis.  In fact, as a young lawyer, I had more occasions to become acquainted with lawyers who defended cases I was working on that with lawyers who were prosecuting similar cases.  I was fortunate to be on good terms with most of these lawyers, and some even became good friends.  Will Rogers said "It takes a lifetime to build a good reputation, but you can lose it in a minute."

Even before 1997, our conduct as attorneys was governed by a Canon of Ethics and Disciplinary rules which were rather strictly enforced, especially in comparison to most other professions.  It was unfortunately fairly common to read court decisions against attorneys based upon the proceedings of the grievance committee in the New York Law Journal and other publications on a regular basis.

I once analogized the relationship between plaintiff and defendant attorneys to a cartoon I saw as a child.  The Roadrunner and Wiley Coyote are walking together having a friendly conversation carrying lunch buckets.  They enter a fenced property and approach a time clock on the wall of a guard house.  They select their time cards and punch in before returning the cards to their place.

For the balance of the cartoon (representing their entire “work” day), the Coyote expends great effort chasing and trying to kill the Roadrunner, who manages not only to elude the Coyote, but to make him the victim of his own traps.  Suddenly, an air whistle blows.  They return to the guardhouse and punch out.

They leave the property as they came, talking amiably; the best of friends.

It’s a shame really, that in 1997 it became necessary to remind lawyers that we should all get along.

[1]The well of the courtroom is the area where the participants of the trial – Judge, jury, counsel and witnesses sit, separated from the public by a short wall with a swinging gate as depicted in the diagram.

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