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Rambo
Lawyering
Denver
District Court has begun to include a "Rambo lawyering"
instruction to attorneys in case management orders. The instruction
reads as follows:
This
is a CIVIL division. "Rambo Lawyering"
will not be tolerated. Counsel will treat jurors, parties,
witnesses, me, my staff and each other with professionalism,
courtesy and respect at all times. This applies not only
to the actual trial, but to all aspects of the case, including
discovery and motions practice, and includes what is written
as well as what is said.
The term
"Rambo Lawyering," if unclear from the context of the instruction,
made reference in a footnote to three law review articles:
Welcome Home Rambo: High Minded Ethics and Low Down Tactics
in the Courts, 25 Loy. L. Rev. 81 (1991); Robert N. Sayler,
Rambo Litigation: Why Hardball Tactics Don’t Work,
ABAJ, March 1, 1988 at 79; and Jean M. Carey,Rambo Depositions:
Controlling an Ethical Cancer in Civil Litigation, 25
Hofstra L. Rev. 561 (1996).
The overarching
theme of these articles is that "hard ball" litigation
tactics are the ineffective offspring of zealous advocacy.
Welcome Home Rambo defines this style of litigation
as being permeated with "deception, nastiness, intimidation
and general lack of civility." The Rambo Litigation article
characterizes this style of litigation six characteristics:
1) A mind set that litigation is war and that describes trial
practice in military terms; 2) A conviction that it is invariably
in your interest to make life miserable for your opponent;
3) A disdain for common courtesy and civility, assuming that
they illbefit the true warrior; 4) A wondrous facility for
manipulating facts and engaging in revisionist history; 5)
A hair-trigger willingness to fire off unnecessary motions
and to use discovery for intimidation rather than fact?finding;
and 6) An urge to put the trial lawyer on center stage rather
than the client or his cause.
The ineffectiveness
of this type of attorney is often cited. Aside from the negative
impact on the public's view of the legal profession, the consensus
among judges seems to be that this style of litigation is
bad advocacy. It is difficult to obtain cooperation from opposing
counsel when engaging in hardball litigation tactics, because
one attorney's hardball conduct will tend to encourage similar
conduct in the opposition. Moreover, such tactics tend to
encourage costly retaliatory conduct. The overall result of
such tactics is that the cost of litigation is increased and
judicial resources wasted in needless litigation.
It has
been argued that judicial tolerance of hardball litigation
tactics has been essential in the promotion of such conduct
today. However, because of the perceived problems with "Rambo
Lawyering," more judges are beginning to enforce a code
of civility in their courtrooms and in litigant interactions
outside the courtroom. Judges have a great degree of control
over the inner workings of their courtrooms. Judges can promote
civility in the courtroom by simply requiring that lawyers
who appear in court are civil. Judges can encourage civility
in and out of the courtroom by making it clear that such tactics
will not work in litigation, by imposing sanctions and by
reporting lawyer misconduct.
We believe
that the interests of our clients can generally be more effectively
served in litigation conducted in accordance with such a civility
instruction, and we support the judiciary's role in advancing
civility among attorneys and litigants.
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