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Adversaries and Judges

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Abstract

In this chapter, the study attorneys describe how they relate to opposing counsel and judges. They consider how professional relationships have changed during the last 50 years and discuss their own style in communicating with adversaries. They also talk about the tension between being an officer of the court and an advocate and the attorney’s role in protecting clients from undue judicial pressure to settle a case. Reflecting on the judiciary, they assess the impact of trial delay reduction programs and the emigration of judges from public service to private mediation companies.

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Notes

  1. 1.

    Heiting, James O. (2006, May). A new approach to civility. California Bar Journal, p. 1.

  2. 2.

    Mashburn, Amy R. (1994). Professionalism as class ideology: Civility codes and bar hierarchy. Valparaiso University Law Review 28, 692. Daicoff, Susan. (1997). Lawyer, know thyself: A review of empirical research on attorney attributes bearing on professionalism. American University Law Review, 46, 1344–1345. Hansen, Mark. (1991, July). Incivility a problem, survey says. ABA Journal, p. 22. See Daicoff, Susan. (2006). Lawyer, know thyself (pp. 102–112). Washington, D.C.: American Psychological Association.

  3. 3.

    Mashburn, Amy R. (1994). Professionalism as class ideology: Civility codes and bar hierarchy. Valparaiso University Law Review 28, 692.

  4. 4.

    Sayler, Robert. (1988, March 1). Rambo litigation: Why hardball tactics don’t work. ABA Journal, pp. 79–81.

  5. 5.

    Hansen supra note 2 at 22. Friedman, Paul L. (1998, March 13). Fostering civility: A professional obligation. Remarks by Judge Paul L. Friedman, United States District Court for the District of Columbia, American Bar Association Section of Pubic Contract Law. Available at http://www.abanet.org/contract/operations/proceedings/sigdocs/friedman13mar98.html.

  6. 6.

    Hansen supra note 2 at 22.

  7. 7.

    Macfarlane, Julie. (2007). The new lawyer: How settlement is transforming the practice of law (pp. 22–23). Vancouver, British Columbia: UBC Press.

  8. 8.

    Tigar, Michael. (2009). Nine principles of litigation and life (p. 232). Chicago: American Bar Association. See Tucker, John C. (2003). Trial and error: The education of a courtroom lawyer (p. 71). New York: Carroll & Graf Publishers. (“I had learned from Jim Sprowl that litigation could be conducted calmly with polite respect for your opponent and his client, without losing anything in the way of effectiveness. And I had learned from another partner of the firm and a couple of opponents that litigation could also be conducted like a street fight, without really gaining anything.”)

  9. 9.

    Schneider, Andrea K. (2002). Shattering negotiation myths: Empirical evidence on the effectiveness of negotiation style. Harvard Negotiation Law Review, 7, 143–233. Craver, Charles. (2002). The intelligent negotiator. Roseville, California: Prima Publishing.

  10. 10.

    Schneider supra note 9 at 163–165, 167.

  11. 11.

    (Spring/Summer 2005). Report proposes changes in civil case management. Benchmarks, 1(1), 4. New York State Unified Court System.

  12. 12.

    In a data-driven courthouse, metrics may not fully capture the precedential and democratic values of civil jury trials. In this respect, it is notable that the United States now ranks 11th among 35 countries and 11th among 11 countries with similar income levels in “access to justice.” Agrast, M., Botero, J., & Ponce, A. (2010). WJP rule of law index. Washington, D.C.: The World Justice Project.

  13. 13.

    Resnik, Judith. (1982). Managerial judges. Harvard Law Review, 96, 376–377.

  14. 14.

    Guthrie, Chris, Rachlinski , Jeffrey J. & Wistrich, Andrew J. (2007). Blinking on the bench: How judges decide cases. Cornell Law Review, 93(1), 43. See Guthrie, Chris, Rachlinski, Jeffrey J., & Wistrich, Andrew J. (2001, May). Inside the judicial mind. Cornell Law Review, 86(4), 777–830.

  15. 15.

    Guthrie, Rachlinski & Wistrich (2007) supra note 14 at 17.

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Correspondence to Randall Kiser .

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Kiser, R. (2011). Adversaries and Judges. In: How Leading Lawyers Think. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-20484-5_13

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