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84 Def. Counsel J. [i] (2017)

handle is hein.journals/defcon84 and id is 1 raw text is: 

Editor's Page

By   Michael Franklin Smith

Greetings and happy  new  year. I recently received a daily question and
answer journal as a gift. Each day it poses a short question that prompts
me  to briefly write thoughts about various aspects of life. A question I
recently read asked, Who inspires you? I immediately answered without
hesitation, Lawyers who can do their jobs ethically and without making personal attacks against
opposing  counsel. And people who  stand up  to bullies. Later that evening I pondered why
that answer came so quickly. I had spent much of my  time that very day replying to a seven-
page response brief that accused me of glossing over facts, quoting cases out of context,
purposefully omitting the critical conclusion of a quoted sentence, neglecting to mention the
rest of the discussion, trying to steer the court into clearly reversible error, and misstating the
law. Of course, none of the accusations were true. It was, instead, nothing more than a desperate
attempt to muddy  the waters and bias the court against me and my client in a case involving a
rather mundane  question of claim preclusion. In my written reply, I took the high road, focused
on the merits of the legal arguments, and did not address my opponent's uncivil rhetoric.

Any  attorney who exhibits this kind of lack of civility tarnishes the entire image of the legal
profession. Don't worry, my opponent in this instance was not a member of the International
Association of Defense Counsel. I believe we are civil and professional in all of our legal endeavors.

Ad hominem,  which stands for the Latin term argumentum ad hominem, is basically a response to
an argument  that attacks the person's character rather than the logic or content of the argument.
Ad hominem  attacks against opposing counsel are uncalled for and unprofessional. And yet, they
are more pervasive in the legal profession than any of us care to admit. A quick search in one
legal database retrieved 1,634 cases discussing ad hominem. There were an additional 324 cases
discussing lack of civility. It saddens me to see our esteemed profession tarnished by this kind
of behavior.

Civility and respect are important to me,  and I assume  they are important  to most legal
professionals. Litigation is, in my mind, like a game of chess. Each argument, brief, or action
is a strategic move with a singular focus-to capture the king, i.e. to win. But that desire for
victory is not a license to win at any cost. I have loved litigating cases for the past 25 years and
I look forward to litigating cases for many years to come. I love the thrill of going up against
a competent  opponent  who  advocates for their client with solid legal arguments rather than
acrimonious hyperbole. There are, however, those dark days when I have to read and respond to
a brief that attacks my personal or ethical character rather than the merits of the legal arguments.
Fortunately, at least in my personal experience, this is the exception and not the rule. When I
experience one of those exceptions, I always take the high road. My hope is that a civil response
to an ad hominem  attack will bring civility back to the litigation arena.

In 2017, and beyond, I pledge to always take the high road and never advocate for my client by
attacking my opponent  rather than their argument. I challenge each of you to make the same
pledge. Peace and civility to you and yours in this new year.

Michael Franklin Smith
Editor and Chair of the Board of Editors, Defense Counsel Journal
Shareholder, McAfee &  Taft, A Professional Corporation

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