This chapter includes the following topics:
- Strategy, objectives and preliminary considerations
- Formal reactions to incivility
- General incivility
- Incivility throughout discovery
- Incivility during depositions
- Incivility in court
- Checklist: considering whether to seek attention of court
- Checklist: addressing general incivility
- Checklist: addressing incivility throughout discovery
- Checklist: addressing incivility in depositions
- Checklist: addressing incivility in court
Reprinted with permission from:
Business and Commercial Litigation in Federal Courts
Section of Litigation I American Bar Association
Second edition
Excerpt:
(§ 60:1 - Scope note) This chapter addresses the concept of civility as it may arise over the course of litigation in federal courts. After briefly noting the reactions of courts and bar associations to the perceived rise in uncivil behavior, the chapter discusses ways in which litigants may address uncivil behavior over the course of federal litigation, both formally and informally. Given the repercussions that could follow from a civility-based motion and the general wariness of courts to police attorney behavior, it is often advisable to consider informal methods of dealing with uncivil behavior. In that vein, the chapter discusses ways to address uncivil behavior in specific contexts, from discovery abuses to trial misconduct to general incivility, with reference to relevant federal precedent.
As set forth in this chapter, one possible response to uncivil behavior in litigation is a motion for sanctions. This chapter focuses on matters of civility and does not address broader sanctions issues except to the extent necessary to put civility in context. The principal treatment of these broader sanctions issues is in Chapter 50, “Sanctions” (§§ 50:1 et seq.).
This chapter discusses incivility throughout discovery. Once again, one possible response to incivility in discovery is an application to the court for sanctions. In addition to the discussion of discovery sanctions in Chapter 50, “Sanctions” (§§ 50:11 et seq.), there is additional coverage of discovery sanctions in Chapter 21, “Document Discovery” (§§ 21:1 et seq.). Accordingly, the coverage of discovery sanctions in this chapter is limited to matters specifically related to civility.
This chapter also discusses incivility during depositions. There is also extensive discussion of deposition conduct in Chapter 20, “Depositions” (§§ 20:1 et seq.). Because the principal treatment of deposition conduct is in Chapter 20, the coverage of deposition conduct in this chapter is limited to matters specifically relating to civility.
Finally, this chapter addresses incivility in court and certain forms of improper behavior before juries. There is extensive coverage of trial conduct in Chapters 33 through 40 (§§ 33:1 – 4.0:30), and also coverage of various forms of improper behavior before juries in Chapter 59, “Ethical Issues in Commercial Cases.” (§§ 59:1 et seq.).1 Because the principal treatments of trial conduct and ethical issues are in the chapters devoted to those subjects, the coverage of trial conduct and ethics in this chapter is limited to matters specifically relating to civility.