The civil practice of law

By Mark Ham Dolan Media Newswires OKLAHOMA CITY, OK -- People generally understand the difference between criminal and civil law. Criminal law is the exciting law in most television shows or movies and includes the climactic scenes in which someone confesses or is exonerated. Civil law, by contrast, is the subject of fewer shows and most often is represented as being either a burden on the individual because someone is losing custody of their child, just plain boring, or as a backdrop to what is happening to the attorney outside of court. Civil law is the law of contracts, employment and labor disputes, probate, divorce and custody, oil and gas, and real estate, just to name a few. I practice civil law, not because I want to deal in child custody battles, or because I enjoy boring work, or even because I have so much going on elsewhere that I could star in my own show. I practice civil law because I enjoy helping clients solve problems or prevent problems from developing. The practice of law is getting things done for your client, either in court or otherwise, often with the assistance of others. What I have noticed, however, is that the practice is increasingly uncivil. Attorneys are increasingly subject to cheap shots by other attorneys in court proceedings. While it may be natural coming from your opponent's client, it isn't when coming from another attorney. An attorney is not supposed to be vested in his clients' cases so that each defeat or victory in a case is personal for the attorney. You want your attorney to care, but he shouldn't treat the case as his own. The rules governing attorneys are written with that goal in mind and attorneys are supposed to rise above the fray. Judges do not want attorney disputes in their courts and clients often suffer when their attorneys can't keep a civil tongue. I was the object of such a display on a recent visit to the court on a routine discovery matter. There were multiple parties at the hearing and we each were given a turn to explain our side on the issue of whether certain documents should be produced. My opponent opined that I had no legitimate reason for wanting the documents and that I was merely trying to create evidence against his client, although his wording was much more forceful and my character was more forcefully maligned. I was called upon to defend myself. What exactly could this type of argument accomplish? In a word, nothing. If the attorney really believed I was doing anything wrong, he was obligated to seek direct assistance from the court and to report me to the bar association. When an attorney observes another attorney breaking the rules, and fabricating evidence would be breaking the rules, he is required to report the infraction. In this case, what the attorney was doing amounts to the legal equivalent of puffing by advertisers who claim their product is the number one product in the world. The attorney was maligning my character as a way of arguing that my client's case was flawed, but he didn't do that. Instead, he contributed to the incivility that is plaguing society and the practice of law and the reputation of lawyers. This attorney may or may not have harmed my reputation and credibility with the judge, but he did not do his client any favors because everyone was forced to deal with his malicious and unfounded accusations. What's next, cracks about my mother? Happy holidays to you too, you jerk. While I don't believe he did any long-lasting damage, I will remember his conduct when he needs something from me - an agreement to an extension of time, or some other routine courtesy that I will likely deny him. In the end the practice of law will suffer because it is incidents like these that cause attorneys to be weary of the practice of law and leave. I, or some other attorney he is up against, will have to respond in kind and ultimately our clients will suffer because it will become increasingly more difficult to accomplish anything. I only hope that I never treat another attorney with the disrespect I was shown. The practice of law is less rewarding when incivility becomes palpable and it accomplishes nothing other than to make a civil practice uncivil. Mark Hamby is an attorney with Bonham & Howard law firm in Tulsa. Published: Thu, Mar 11, 2010

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