Don’t Back Down: Ethical Strategies for Dealing with Bullying and Bias in Litigation

Learning Objectives

• To discuss how to identify bullying and bias when directed as us or our clients in the practice of law. 
• To analyze how to address procedural issues with opposing counsel and establish effective protocols for resolving pre-trial disputes.
• To inspect how to prepare for, conduct, and defend various aspects of litigation such as discovery, oral arguments, hearings, trials, and settlement conferences in ways that are respectful and civil towards others. 
• To discuss how to identify and use applicable court, judicial, and bar association rules and recommendations to deal with adversaries who do not behave respectfully or demonstrate bullying and bias towards you and your clients. 
• To analyze how to make a record and enlist the court to assist you in condemning bullying and bias through carefully crafted communications with abusive adversaries and citation to their disciplinary and sanctions history.

Course Description

Many attorneys operate under the misconception that their ethical duties require overly aggressive and zealous advocacy and that winning at all costs is the way to go.

However, that is not correct. Attorneys who bully, break ethical rules and misuse their positions often excuse their bad behavior by referencing a “duty” to zealously advocate on behalf of their clients. These unprofessional adversaries misunderstand the American Bar Association Model Rules of Professional Conduct and the obligations that they impose on attorneys. In fact, Rambo-style conduct and scorched earth tactics often violate ethical rules and court protocols. Behaving badly exposes them to sanctions.

In addition, studies have found that bullying is often linked to bias against people who are different than the aggressor or perceived to be less powerful Incidents of bullying directed at women, non-binary persons, members of religious and racial minorities, or differently-abled people is a problem in the legal profession, especially in litigation.

To deter bad behavior, protect ourselves and our clients, and encourage practice with civility, we must use the tools available to us under the ABA Model Rules, the Federal Rules of Civil Procedure, and state counterparts to call unprofessional adversaries to task by reporting unethical acts, and in some cases, asking for sanctions.

This CPE webinar will cover several ethical issues arising out of aggressive litigation practices and present an array of tools to use when dealing with opposing counsel who engages in those practices.

Overview

• Why do we care?

  5 mins
• What do we mean by bullying?

  10 mins
• Expectations of lawyer integrity - Why bullying violates the rules

  20 mins
• Case study: Bullying by thwarting descovery

  34 mins
• Case study: Bullying in settlement negotiations

  43 mins