Trial Magazine

As trial lawyers representing victims of negligence, we hold health care providers to certain standards as professionals—expecting them to meet their duty to protect people and do no harm. And we are no strangers to professional standards in our own field, with our own set of duties and expectations that we owe to our clients.

But there are other aspects to being a professional. In the realm of litigation, “professionalism” in attorneys’ behavior is often regarded as a crucial element for effective advocacy and civil discourse. It certainly has been an issue frequently discussed since I became a lawyer more than 30 years ago. But it is imperative to acknowledge that professionalism extends beyond mere cordiality and outward appearances. Far too often, the veneer of professionalism masks obstructive behavior by the defense.

Defendants often use tactics that hinder progress and delay justice for our clients. Cordial conversations and seemingly collaborative efforts may fail to address the underlying substantive issues. This obstructive behavior, concealed under a cloak of professionalism, poses a challenge for trial lawyers striving to move cases forward and secure justice for their clients. It is important to recognize and address these deceptive practices to ensure that professionalism is not merely performative but also substantive in nature.

Professionalism goes beyond being polite and courteous. It encompasses a commitment to integrity, ethics, and seeking justice. It requires actively engaging in the pursuit of truth, diligently gathering evidence, and adhering to the principles of fairness and transparency. True professionalism demands that attorneys refrain from hiding materials or creating protective orders that restrict the sharing of information vital to the case. It calls for a higher standard of conduct, one that upholds the principles of the legal profession rather than simply maintaining a façade of civility. To promote substantive professionalism, we must hold defendants—and ourselves—to a higher bar.

It is not enough to have endless discussions about obtaining timely deposition dates. It is not enough to have meet-and-confers about boilerplate objections that are designed to confuse and hide the truth. It is not enough to have protective orders that claim to protect highly sensitive trade secrets but, in practice, are designed to prevent plaintiff attorneys from collaborating on similar cases. We must demand professionalism that incorporates cordiality but also allows us to obtain the discovery that our clients are entitled to, to move their cases forward expeditiously, and to achieve a timely resolution.

This requires advocating for changes in legal practices, rules, and procedures to discourage obstructive tactics and prioritize progress. It entails fostering an environment where both sides are held accountable for their actions and commitments, with integrity and dedication to our clients’ needs leading the way. AAJ’s resources can help you do just that. The new Over-Designation Litigation Group, which is free to join, provides tools and expertise to counter unreasonable protective orders and privilege claims (www.justice.org/community/litigation-groups).

And The Stonewall Solution, an obstruction management software tool from AAJ Press^® and AAJ member Mark Kosieradzki, can help you compel defendants to produce complete discovery responses. It includes conferral templates, a template brief, and supporting documents to create a streamlined process (www.justice.org/aajpress). AAJ Education also helps members hone skills on stopping obstructive tactics through its deposition colleges and other programs throughout the year (www.justice.org/education).

You can also support AAJ’s efforts to advocate for fair and balanced amendments to the Federal Rules of Civil Procedure. There is currently a proposed amendment on the timing and method for asserting claims of privilege under Rule 26(b)(5)(A), which includes privilege log issues. Public comment is open until Feb. 16, 2024.

By actively advocating for a higher standard of conduct that serves the interests of case resolution, we can create a legal landscape that upholds the true essence of professionalism.

Sean C. Domnick is a founder and shareholder of Domnick Cunningham & Yaffa in Palm Beach Gardens, Fla., and can be reached at sean.domnick@justice.org.