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Civility Is an Aspect of Skill – Recognizing the Cost of Incivility

Incivility is costly to the client, to an attorney, and to the court. This is not merely common sense; it has recently gained support in legal authority. In Karton v. Ari Design & Construction, Inc., No. B298003, 2021 WL 868427 (Cal. Ct. App. Mar. 9, 2021), the California Court of Appeal issued a published decision with succinct analysis on the tangible cost of incivility on litigation. Karton concerned the trial court’s order adjusting an award of attorney’s fees using the loadstar method. Id. at *1 (holding that trial judges may consider “whether the attorney seeking the fee has become personally embroiled and has, therefore, over-litigated the case” and “whether an attorney’s incivility in litigation has affected the litigation costs”).

The court started with the observation that: “The American legal profession exists to help people resolve disputes cheaply, swiftly, fairly, and justly.” Id. This is consistent with Federal Rule of Civil Procedure 1, which provides that the rules: “should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.”

The court noted the traditional premise that attorney skill is a “touchstone for deciding whether to adjust a lodestar.” Karton, 2021 WL 868427, at *7 (citation omitted). Simply put: “Civility is an aspect of skill.” Id. This reflects lessons learned through “[s]ound logic and bitter experience.” Id. The Karton court explained that civility “lowers the costs of dispute resolution.” Id. Some of the many advantages of civility in litigation include narrowing issues by focusing disputes on legal analysis and evidence. Id. (“[C]ivility in litigation tends to be efficient by allowing disputants to focus on core disagreements and to minimize tangential distractions.”). Litigators also know that civility leads to more advantageous litigation positions. Demonstrating respect is disarming and projects confidence, which is useful in negotiations. Civility in the face of rudeness or insult also takes control, which is a strength necessary for proper composure during witness examination, oral argument, and trial. And of course, civility “is ethically required for its own sake.” Id.

By contrast, “[i]ncivility can rankle relations and thereby increase the friction, extent, and cost of litigation.” Id. (discussing that incivility “can invite destructive reciprocity and generate needless controversies”). The U.S. District Court, Southern District of California, has affirmed similar maxims in its Local Rules providing: “Civility in action and words is fundamental to the effective and efficient functioning of our system of justice and public confidence in that system.” CivLR 2.1(a)(1) (S.D. Cal.).

The cost of incivility on litigation is measurable by the amount of “human hours, which could have been put to socially productive uses.” Id. And the cost of incivility is born by all. Karton,2021 WL 868427, at *7 (“All sides lose, as does the justice system, which must supervise the hostilities.”). The Karton court concluded with a warning: “It is a salutary incentive for counsel in fee-shifting cases to know their own low blows may return to hit them in the pocketbook.” Id.

The advantages of civility are felt by the client, the attorneys, and the court. Therefore, civility is well worth the effort, both individually and when considering the justice system as a whole. As Karton shows, civility may also have a direct impact on the bottom line.


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