Memo to a New Litigator
Abusive litigation tactics do little for the client or the lawyer. Rather, such behavior is the hallmark of a second-rate attorney. Under both the state and federal judicial systems, a newly-minted lawyer is required to maintain the respect due to the courts of justice and judicial officers.[1]
As Justice Benjamin Cardozo once put it:
Membership in the bar is a privilege burdened with conditions. An attorney is received into that ancient fellowship for something more than private gain. He becomes an officer of the court, and, like the court itself, an instrument or agency to advance the ends of justice.[2]
Chief Justice Burger summed it up with equal perspicacity:
As an officer of the court, a member of the bar enjoys singular powers that others do not possess; by virtue of admission, members of the bar share a kind of monopoly granted only to lawyers. Admission creates a license not only to advise and counsel clients but also to appear in court and try cases; as an officer of the court, a lawyer can cause persons to drop their private affairs and be called as witnesses in court, and for depositions and other pretrial processes that, while subject to the ultimate control of the court, may be conducted outside courtrooms. The license granted by the court requires members of the bar to conduct themselves in a manner compatible with the role of courts in the administration of justice.[3]
Increasingly — as they should — courts are becoming less tolerant of abusive, improper or overly-litigious behavior by counsel. In addition to a loss of respect which counsel employing such tactics can expect, the offending lawyer’s pocketbook may also suffer.
As the court in Karton v. Ari Design & Construction, Inc.[4] pointed out, “Trial judges deciding motions for attorney fees properly may consider whether the attorney seeking the fee has become personally embroiled and has, therefore, over-litigated the case. Similarly, judges permissibly may consider whether an attorney’s incivility in litigation has affected the litigation costs.”[5]
The recent case of Snoeck v. ExakTime Innovations, Inc. (Snoeck)[6] illustrates the potential consequences of overly aggressive, uncivil behavior by counsel. Plaintiff Steve Snoeck obtained a jury award against his former employer for violations of the Fair Employment and Housing Act (FEHA).[7]
The court calculated the lodestar amount[8] of attorney’s fees due to Snoeck’s lawyer as $1,144,659.36.[9] Snoeck’s lawyer then moved for a multiplier of 1.75, seeking total compensation of $2,089,272.50. In FEHA cases the court has the discretion to increase or reduce the lodestar figure by applying a positive or negative “‘multiplier’” based on a variety of factors such as the novelty and difficulty of the issues presented, the skill demonstrated in litigating them, and the contingent nature of the fee award.[10]
The Snoeck court not only rejected the motion for increased attorney’s fees, it applied a 0.4 negative multiplier because of the pervasive incivility of Snoeck’s lawyer. The result was an attorney’s fees award of $686,795.62, which amounted to a reduction of $457,863.74 due to “[p]laintiff’s counsel’s … lack of civility throughout the entire course of this litigation.” The Court of Appeal affirmed, noting that “the record supports the trial court’s finding that [Snoeck’s counsel’s] uncivil communications and ad hominem attacks were not necessary for the zealous representation of his client.”[11]
Incivility is not the only means whereby an overzealous litigator can run into trouble. It is axiomatic that a lawyer must have a good faith belief based upon reasonable assumptions that his or her filings with the court are proper. Filing frivolous pleadings for an ulterior purpose such as to increase the difficulty for the opponent or to unnecessarily delay the proceedings, can result in adverse circumstances for the offending litigator. As the court pointed out more than three decades ago in Papadakis v. Zelis,[12] sanctions are “clearly appropriate” for the filing of a frivolous appeal.[13]
In Papadakis the offending lawyer stipulated to a judgment, then attempted to avoid its consequences by filing for bankruptcy and seeking a stay. Sanctions were imposed, with the court pointing out “[i]t was never intended that the automatic stay provision would become an ‘escape mechanism’ … from the enforcement by the courts of their inherent regulatory power over attorneys’ abuses of the court system.”[14] As the court observed over three decades ago:
We conclude by reminding members of the Bar that their responsibilities as officers of the court include professional courtesy to the court and to opposing counsel. All too often today we see signs that the practice of law is becoming more like a business and less like a profession. We decry any such change, but the profession itself must chart its own course. The legal profession has already suffered a loss of stature and of public respect. This is more easily understood when the public perspective of the profession is shaped by cases such as this where lawyers await the slightest provocation to turn upon each other. Lawyers and judges should work to improve and enhance the rule of law, not allow a return to the law of the jungle.[15]
It is well to remember, as it was said centuries ago, “civility costs nothing and buys everything.”[16]
[1]See Bus. & Prof. Code § 6068; Rules of Prof. Conduct 3.1 through 3.6; 28 USC § 2072.
[2] People ex rel. Karlin v. Culkin, 248 N. Y. 465, 470-471, 162 N. E. 487, 489 (1928).
[3]In re Snyder, 472 U.S. 634, 644-645 (1985). See also Greer’s Refuse Service, Inc. v. Browning-Ferris Indus. of Del., 843 F.2d 443, 446 & n. 7 (11th Cir. 1988) (citing Frazier v. Heebe, 482 U.S. 641, 645 (1987).
[4](2021) 61 Cal. App. 5th 734.
[5]See also Bass v. Tiscareno (In re Tiscareno), 551 B.R. 1 (2016).
[6](2023) 96 Cal. App. 5th 908.
[7]Gov. Code, § 12900 et seq.
[8]The lodestar amount is the product of the number of hours spent on the case times an applicable hourly rate. See Caldera v. Department of Corrections & Rehabilitation (2020) 48 Cal.App.5th 601, 607.
[9]Under the FEHA, “the court, in its discretion, may award to the prevailing party … reasonable attorney’s fees and costs.” Gov. Code, § 12965, subd. (c)(6).
[10]Snoeck at 920-921. See also Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132 (Ketchum); Karton v. Ari Design & Construction, Inc. (2021) 61 Cal.App.5th 734, 744 (Karton).
[11]Snoeck at 933-934.
[12](1991) 230 Cal. App. 3d 1385.
[13]See also In re Mole, 822 F.3d 798 (2016) [attempt to improperly influence trier of fact].
[14]Id. at 1389.
[15]Lossing v. Superior Court (1989) 207 Cal.App.3d 635, 641.
[16]Lady Mary Wortley Montagu (1689-1752) letter of May 30, 1756, to her daughter.