Appellate, Civil Litigation

The cost of incivility in litigation: Cormier

By Paul Russell, AdvocateDaily.com Contributor

Incivility during litigation can needlessly delay proceedings and result in significant cost increases for everyone involved, says Toronto trial and appellate lawyer Joel Cormier.

“It’s much easier for me to settle the case when I have a collegial relationship with opposing counsel,” he tells AdvocateDaily.com.

In some cases, lawyers may see incivility as a tactic to secure some kind of advantage, though this approach usually fails, says Cormier, associate with Will Davidson LLP.

“In my experience, it always comes back to bite them because, at the end of the day, you have an obligation as a lawyer to be civil and if you are not, there will be consequences,” he says.

Judges do not like to witness personal insults or verbal attacks between lawyers, and the Law Society of Ontario can impose consequences on members for that type of behaviour, Cormier says.

“The society doesn’t want to see incivility between lawyers as it brings the reputation of the profession into disrepute,” he says.

Thankfully, most lawyers are polite to each other, Cormier says, adding he rarely has to deal with an opposing counsel who is uncivil.

“I have seen lawyers who don’t take failure very well, and who will snap at opposing counsel after the edict has been rendered,” he says. “There was one lawyer who was quite short with me after losing a trial.”

The court and the general public frown on that sort of behaviour, Cormier says.

“Lawyers have to be gracious in both success and defeat,” he says.

It is also important that lawyers be respectful to witnesses during a trial, Cormier says.

“You’re allowed to cross-examine a witness, and be relatively hard on them, and to occasionally elevate your tone, but I have seen cases where the tone became a little bit too harsh, and the lawyer’s behaviour wandered into the realm of abuse,” he says.

While solicitors are entitled, or even expected, to be adversarial in court, Cormier says they still have to remain civil towards witnesses.

“There are ways of doing a rigid cross-examination while maintaining, for the lack of a better term, a sportsmanlike attitude at the same time,” he says.

For the most part, Cormier says trial lawyers show respect and deference towards judges and the court, in addition to opposing counsel.

To foster an atmosphere of collegiality and respect in the courtroom, he says lawyers should take the time to speak to opposing counsel after a verdict.

“Be gracious with your successes and your defeats, and be kind to those who fail to win the case,” Cormier says.

During a trial, he says civility will help the case reach a conclusion sooner.

“If there is incivility, tempers will flare, and that stands in the way of good communication, which is key if you’re trying to reach a settlement,” Cormier says.

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