BOSTON BAR ASSOCIATION CIVILITY STANDARDS FOR
CIVIL LITIGATION
Index
PREAMBLE
Believing that the following Civil Litigation Standards
embody the principles to which most litigating lawyers already adhere,
the Boston Bar Association promulgates these Standards in order to articulate
those principles in writing for ease of reference to benefit the community,
practicing lawyers and new members of the bar.
These Standards are intended to be aspirational and voluntary.
They are not intended to generate disputes that may result in additional
litigation, and they should not be cited as legal authority in any disciplinary
proceeding or in any civil or criminal action. Rather, it is hoped that
the Standards will be used as an educational tool with the effect of promoting
efficient, economical and respectful conduct of civil litigation.
| A. |
In his or
her representation of a client, a lawyer should conduct himself
or herself in a manner which, without compromising the interests of
his or her client, will facilitate the resolution of disputed matters.
Accordingly, a lawyer should:
- maintain open communication with opposing lawyers;
- communicate respectfully with other lawyers;
- respect the schedule of opposing lawyers and be truthful about
his or her own schedule;
- present issues efficiently without unnecessarily burdening opposing
lawyers by discovery or otherwise;
- discuss each issue with opposing lawyers in a good faith attempt
to resolve it without protracted negotiation or unnecessary litigation;
- be guided by the principle that representation behalf of his
or her client ought to be characterized by good faith and honesty;
- avoid creating unnecessary animosity or contentiousness;
- avoid setting forth allegations against another lawyer unless
relevant to the proceeding and well founded;
- require those under his/her control to comply with these guidelines
and encourage clients and others to do likewise.
|
| B. |
The application of these guidelines
to situations frequently occurring in a litigation practice are described
herein.
- Continuances
and Extensions of Time
| a. |
First requests for reasonable extensions of time to respond
to litigation deadlines, whether relating to pleadings,
discovery or motions, should ordinarily be granted as a
matter of courtesy unless time is of the essence. A first
extension should be allowed even if the lawyer requesting
it has previously refused to grant an extension. |
| b. |
After a first extension, any additional requests for time
should be dealt with by balancing the need for expedition
against the deference one should ordinarily give to an opponent's
schedule of professional and personal engagements, the reasonableness
of the length of extension requested, the opponent's willingness
to grant reciprocal extensions, the time actually needed
for the task, and whether it is likely a court would grant
the extension if asked to do so. |
| c. |
A lawyer should inform clients that the decision whether
to grant extensions of time belongs to the lawyer and not
to the client. |
| d. |
A lawyer should not seek extensions or continuances for
the purpose of harassment or prolonging litigation. |
| e. |
A lawyer should not attach to extensions unfair and extraneous
conditions. A lawyer is entitled to impose conditions such
as preserving rights that an extension might jeopardize
or seeking reciprocal scheduling concessions. A lawyer should
not, by granting extensions, seek to preclude an opponent's
substantive rights, such as his or her right to move against
a complaint. |
- Service of Papers
| a. |
The timing and manner of service of papers should not
be used to the disadvantage of the party receiving the papers. |
| b. |
Papers should not be served so close to a court appearance
that they inhibit the ability of opposing lawyers to prepare
for that appearance or to respond to the papers, where the
law permits a response. In making or responding to a motion
for preliminary injunction or other emergency matters, a
lawyer should make reasonable efforts to comply with the
spirit of this rule. |
| c. |
Papers should not be served in order to take advantage
of a lawyer's known absence from the office or at a time
or in a manner designed to inconvenience a lawyer or his/her
client, such as late on Friday afternoon or the day preceding
a secular or religious holiday. |
| d. |
Service should be made personally or by facsimile transmission
when it is likely that service by mail, even when allowed,
will prejudice the opposing party. A lawyer who has obtained
a short order of notice and knows the identity of or can
reasonably identify the opposing lawyer should immediately
notify that lawyer by telephone or by facsimile. A lawyer
who receives notification as described above should immediately
notify his or her client of any temporary restraining order
and that he or she is bound by it even before formal service
is made. |
- Written Submissions to
a Court, Including Briefs, Memoranda, Affidavits and Declarations
| a. |
Written briefs or memoranda of points and authorities
should not rely on facts that are not properly part of the
record or subject to judicial notice. |
| b. |
Neither written submissions nor oral presentations should
disparage the intelligence, ethics, morals, integrity or
personal behavior of another lawyer or his/her client, unless
such matters are directly and necessarily in issue. |
- Communications With
Lawyers
| a. |
A lawyer should at all times be civil and courteous in
communicating with other lawyers, whether in writing or
orally. |
| b. |
A lawyer should not write a letter to ascribe to another
lawyer a position he or she has not taken or to create "a
record" of events that have not occurred. |
| c. |
Letters intended only to make a record should be used
sparingly and only when thought to be necessary under all
the circumstances. |
| d. |
Unless specifically permitted or invited by the court,
letters between lawyers should not be sent to judges. |
- Depositions
| a. |
Depositions should be taken only where actually needed
to ascertain facts or information or to perpetuate testimony
for purposes of the case in which the deposition is taken.
They should never be used as a means of harassment or to
generate expense or solely to obtain information for use
in other pending or anticipated litigation. |
| b. |
In scheduling depositions reasonable consideration should
be given to accommodating schedules of opposing lawyers
and of the deponent, where it is possible to do so without
prejudicing the client's rights. |
| c. |
Before issuing notice of deposition, a lawyer should contact
all lawyers of record in an attempt to reach agreement on
a schedule for all depositions and all lawyers should attempt
in good faith to abide by any agreement reached. |
| d. |
A lawyer should not attempt to delay a deposition for
dilatory purposes. |
| e. |
A lawyer should not inquire into a deponent's personal
affairs or question a deponent's integrity where such inquiry
is irrelevant to the subject matter of the deposition. |
| f. |
A lawyer should not harass a deponent and should refrain
from repetitive or arguments live questions. |
| g. |
A lawyer defending a deposition should limit objections
to those that are well-founded and necessary for the protection
of a client's interest. A lawyer should bear in mind that
most objections are preserved and need be interposed only
when the form of a question is defective or privileged information
is sought. |
| h. |
While a question is pending, a lawyer should not, through
objections or otherwise, coach the deponent or suggest answers. |
| i. |
A lawyer should not direct a deponent to refuse to answer
questions unless he or she has a good faith basis for claiming
privilege or for seeking a protective order. |
| j. |
A lawyer should refrain from self-serving speeches during
depositions. |
| k. |
A lawyer should not engage in any conduct during a deposition
that would not be allowed or would be inappropriate in the
presence of a judicial officer or a jury. |
- Interrogatories
| a. |
Interrogatories should not be used to harass or impose
undue burden or expense. |
| b. |
Interrogatories should not be read by the lawyer in an
artificial manner designed to assure that answers are not
truly responsive. |
| c. |
Objections to interrogatories should be based on a good
faith belief in their merit and not be made for the purpose
of withholding relevant information. If an interrogatory
is objection able only in part, the unobjectionable portion
should be answered. |
- Document Demands
| a. |
Demands for production of documents should be limited
to documents actually and reasonably believed to be needed
for the prosecution or defense of an action and not made
to harass or embarrass a party or witness or to impose an
inordinate burden or expense in responding. |
| b. |
Demands for document production should not be so broad
as to encompass documents clearly not relevant to the subject
matter of the case. |
| c. |
In responding to document demands, a lawyer should not
strain to interpret the request in an artificially restrictive
manner in order to avoid disclosure. |
| d. |
Documents should be withheld on the grounds of privilege
only where there is a good faith basis for asserting privilege. |
| e. |
A lawyer should not produce documents in a disorganized
or unintelligible fashion, or in a way calculated to hide
or obscure the existence of particular documents. |
| f. |
Document production should not be delayed to prevent
opposing lawyers from inspecting documents prior to scheduled
depositions or for any other tactical reason. |
- Motion Practice
| a. |
Absent justification to do otherwise, before filing or
serving a motion, a lawyer should engage the opposing lawyer(s)
in more than a mere pro forma discussion of its purpose
in an effort to resolve the issue. |
| b. |
A lawyer should respond in good faith to any request for
an assent to a motion. |
- Dealing with Non-Party
Witnesses
| a. |
A lawyer should not issue subpoenas to non-party witnesses
except in connection with their appearance at a hearing,
trial or deposition. |
| b. |
Deposition subpeonas should be accompanied by notices
of deposition with copies to all lawyers. |
| c. |
Where a lawyer obtains documents pursuant to a deposition
subpoena, copies of the documents should be made available
to each other lawyer at his or her expense even if the deposition
is canceled or adjourned. |
- Ex Parte
Communications With the Court
| a. |
A lawyer should avoid ex parse communication on the substance
of a pending case with a judge (or his or her law clerk)
before whom such case is pending. |
| b. |
Even where applicable laws or rules permit an ex parse
application or communication to the court, before making
such an application or communication, a lawyer should make
diligent efforts to notify the opposing party or a lawyer
known to represent or likely to represent the opposing party
and should make reasonable efforts to accommodate the schedule
of such lawyer to permit the opposing party to be represented
on the application, unless subsection (c.) applies. |
| c. |
Where the rules permit an ex parte appli cation or communication
to the court in an emergency situation, a lawyer should
make such an application or communication (including an
application to shorten an otherwise applicable time period)
only where there is a bona fide emergency such that the
lawyer's client will be seriously prejudiced by a failure
to make the application or communication on regular notice. |
- Settlement
and Alternative Dispute Resolution
| a. |
A lawyer should raise and explore with his or her client
the issue of settlement in every case as soon as enough
is known about the case to make that discussion meaningful. |
| b. |
A lawyer should not falsely hold out the possibility of
settlement as a means for adjourning discovery or delaying
trial. |
| c. |
In every case, a lawyer should consider, and discuss with
his/her client, whether the client's interest could be adequately
served and the controversy more expeditiously and economically
disposed of by arbitration, mediation or other forms of
alternative dispute resolution. |
- Trials and Hearings
| a. |
A lawyer should be punctual and prepared for any court
appearance. |
| b. |
A lawyer should always deal with parties, other lawyers,
witnesses, jurors or prospective jurors, court personnel
and the judge with courtesy and civility. |
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