Author: TSA Press

Last week, following significant controversy, the Senate confirmed Sarah Pitlyk as a federal judge for the U.S. District Court for the Eastern District of Missouri. Before being confirmed, Judge Pitlyk had a prestigious career which included a Yale law degree, a Fulbright Scholarship, an appellate clerkship (with now Supreme Court Justice Kavanaugh), and work in BigLaw.

However, Pitlyk’s career has also involved work directly opposing assisted reproductive technology (my particular specialty of law). Pitlyk was Special Counsel for the Thomas More Society, which has actively labored to oppose surrogacy, as well as in vitro fertilization (IVF) generally, arguing that cryopreserved embryos should be fully recognized as human life. Although Judge Pitlyk was representing her client at the time that the Thomas More Society made these arguments, Judge Pitlyk has publicly indicated she shares the beliefs of her former employer regarding assisted reproductive technology, and full legal personhood for embryos.

Understandably, her nomination did not go unnoticed. Pitlyk was unanimously rated “unqualified” by the American Bar Association for her lack of trial experience, and specifically, because her legal experience had not included ever trying a case, examining witnesses, picking a jury, or participating in a criminal matter. Unsurprisingly, opponents of Judge Pitlyk’s nomination thought that not having these experiences would be problematic for a trial court judge.

Separately, a number of organizations connected to fertility issues — including both RESOLVE: The National Infertility Organization and the Academy of Adoption and Assisted Reproduction Attorneys (AAAA) — opposed Judge Pitlyk for her stance on assisted reproductive technology.

Margaret Swain, who is an AAAA representative attorney, argued that Pitlyk’s “writings appear to be based on ideology and misinformation.” Swain explained that AAAA strongly opposed the lifetime appointment on a federal court of “a person who holds views not based in science or law, and who would prevent those with infertility from receiving care they need.” Swain also explained that Judge Pitlyk’s writings had leveled insults at families who do go through surrogacy by implying that those families were creating a diminished respect for motherhood and the bonds between a child and mother.

How Much Does Pitlyk’s Confirmation Matter?

During her confirmation process, Judge Pitlyk committed to keeping her personal beliefs out of the cases she decides. And while, frankly (or at least hopefully), it’s unlikely that any specific federal judge — particularly trial court judges, who are bound by appellate and Supreme Court precedent -– will set policy on these issues. Nevertheless, there is cause for concern, (1) because cases of first impression do, occasionally, reach a federal court, and (2) because ART law is still in development, and in some cases, there might not be much to go on besides a judge’s “personal beliefs.”

We have seen a number of issues arise when a judge’s personal beliefs clashed with assisted reproductive technology-issues and the law was less than clear.

An Orphaned Child. One of the more striking cases on the topic is that of Baby Jacob, the surrogate-born child of Jay Timmons and Rick Olson. Timmons and Olson had been through the surrogacy process before with their two daughters, and were not expecting complications in the surrogate’s home state of Wisconsin. While Wisconsin does not have specific statutory protections for surrogacy, a state supreme court ruling had recognized surrogacy agreements as legitimate, and Wisconsin judges had historically granted parental rights to the intended parents in a surrogacy arrangement without issue.

Unfortunately for this family, their case was appointed to an anti-surrogacy (or perhaps, more accurately, anti-LGBTQ) judge named James Troupis. Despite the case being uncontested –- all the parties agreed Timmons and Olson were the child’s parents -– Troupis severed the gestational carrier’s presumed parental rights and refused to grant Timmons and Olson parental rights. This left Baby Jacob with no parents — an orphan.

Only after a painful year, and half a million in legal bills, was the case resolved when Troupis stepped down from his judgeship to run for office. The case was then reassigned and resolved with the legal acknowledgement of the fathers’ parent-child relationship.

Anonymous Sperm Donor Deemed Legal Parent. In another distressing case, two years ago a Mississippi state court judge determined that the nonbiological mother of a child born to a same-sex married couple that turned to anonymous sperm donation to conceive was not a legal parent of the child. Instead, the judge ruled that the anonymous sperm donor the couple used was a parent of the child. Therefore, the judge determined, the child already had two legal parents (the biological mom and the anonymous sperm donor), and therefore the nonbiological parent — who had raised the child for the past five years — had no legal rights to the child.

Fortunately, like with Baby Jacob, the situation was eventually remedied. The following year the Mississippi Supreme Court reversed the ruling, granting nonbio mom legal recognition and rejecting the anonymous sperm donor as a legal parent to the child.

Those two examples were before state court judges, not federal court ones, where ART cases are more likely to arise. However, we are certainly seeing assisted reproductive technology cases heading to federal court -– including Pavan where the US Supreme Court found Arkansas’ unequal treatment of same-sex couples using assisted reproductive technology unconstitutional. And the current complicated Teuscher case -– where the seemingly innocent action of a mom to a child conceived from anonymously donated sperm, reaching out to the donor’s relative who was matched to her daughter through a home DNA test, has caused an intense lawsuit -– is in federal court.

I congratulate Judge Pitlyk on her appointment to the federal district court. Obviously, becoming a federal judge is a great honor. I also appreciate her promise to fairly adjudicate the cases before her, without resort to letting her personal beliefs affect her decisions. If she is confronted with a case touching on surrogacy or other assisted reproductive technology issues, let’s hope that the law is sufficiently clear to allow Judge Pitlyk to follow through on this commitment.

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Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

— Walter Shaub, former head of the U.S. Office of Government Ethics, calling Attorney General William Barr a “threat to democracy” in an epic 12 part tweet and warning of potential 2020 election interference.

Just over a month ago, Bill Ackman was playing coy. He’d poured as much as 9.5% of his investors’ money into something, but he couldn’t say just what yet. He hadn’t finished buying it yet, and anyway, already up by 45% on the year and drunk on love and kombucha, he didn’t see the harm in having a little fun with the market. He’d tell us all about it in the new year.

Except he just can’t wait! He’s so excited and everything is working that he’s giving us all a little early Hannukah present: the name of a company whose stock we should all clearly go out and buy immediately, because Bill Ackman literally cannot lose right now.

Even in the most ideal of circumstances, going to law school is a crap ton of work. So, I can’t even imagine the fortitude necessary to tackle getting a JD while also cooking a tiny human in your stomach. But it’s true, people do it all the time, and students at one law school say the administration doesn’t support students who are pregnant.

According to a new story from the Belmont Vision, four current and former law students at Belmont University College of Law allege the law school refused to make accommodations to their attendance policy for pregnant students. Those who have come forward are: Juliana Lamar Above the Law famous for bringing her kid with her to get sworn in, said while she was a student at Belmont after an emergency C-section she felt pressured to return to classes before she could even drive herself or carry her textbooks; Cecilia Young is a 3L who says she was denied additional absences despite being diagnosed with a potentially life-threatening condition and being hospitalized post-birth; Kendall Ponchillia, a 3L with a high-risk pregnancy, was also denied additional absences even when she provided a doctor’s note requesting the accommodation; Rachel Clifton a Belmont Law alumni who says she was initially denied any accommodations, including additional absences, by the school’s former Title IX director, but, after raising the issue with Associate Dean of Academic Affairs Ellen Black, she was eventually allowed to pump after the two hour mark during an exam.

The law school has maintained the need to strictly enforce their attendance policy, which limits missed classes to 15 percent — a more draconian standard than most schools impose when interpreting the American Bar Association’s standard of “reasonable” attendance. Most frequently, schools adopt an 80 percent attendance rule.

Provost Thomas Burns said that what the women were actually requesting were exceptions to the attendance policy, and not medical accommodations. The attendance policy, both he and law school Dean Alberto Gonzales said, would not change.

Belmont law’s attendance policy bars students from missing more than 15 percent of classes in a course; any student to exceed that amount will automatically fail the class with a grade of “FN.”

Rather than change the attendance policy, Burns said the school should find ways to assist pregnant students on a case-by-case basis, which can include additional absences.

“What we need to do is find ways that we can support students and make them successful,” Burns said.

But despite these platitudes, women repeated say they were held to the strict attendance policy despite pregnancy related medical issues. Indeed, when a graduate of the law school, Sarah Martin, brought the concerns to the administration, it was quickly clear that very little would change:

Martin met with Dean Black and discussed the women’s difficulties receiving pregnancy-related support from the law school, requesting that the school change its attendance policy.

“It was a very defensive meeting, there was no commitment to do anything,” Martin said. “She was very clear that nothing was going to change about the attendance policy and no accommodations would ever be made.”

Gonzales, the law school’s dean, reached out to Martin via email the week after that meeting, saying that Martin was “correct in assessing that no changes would be made to the attendance policy.”

But that wasn’t the end of the concerns over pregnancy related accommodations. During a regularly scheduled visit to the law school by the ABA, students approached the ABA contingent and spoke to them about their concerns. The ABA brought those concerns to the law school administration, and it seemed the law school softened its stance on pregnancy accommodations:

The ABA brought those concerns to Belmont in a meeting that Gonzales and university President Bob Fisher attended among others. Following the meeting, the law school altered its language in the attendance policy to further clarify that students were to approach Dean Black for pregnancy-related help.

“I think we’ve taken the appropriate steps to make sure that the student’s health is a priority,” said Gonzales in an interview with the Vision last week. “We try to provide the accommodations they need to be successful as a parent, successful as a law student.”

During that same interview, Black affirmed that the law school is doing all it can.

“I have not had an instance where a student has come to me and asked for assistance and I did not provide it,” said Black, adding that the women should continually follow up with her if their situations require medical accommodations.

However, Ponchillia’s pregnancy occurred after the policy was amended. She says, armed with a doctor’s note detailing her high risk pregnancy, she consulted with Black about possible accommodations, and she wasn’t given any help:

“They basically told me to schedule my doctor’s appointments on Fridays so I wouldn’t miss class, that there was nothing they can do for me now, and that they could readdress it in the spring.”

As Martin notes, “The way Kendall [Ponchillia] has been treated makes me think that nothing has changed.”

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Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

“Somewhere around the middle of her forehead.”

— Baltimore Sheriff’s officials confirming that Chief Circuit Judge Wanda Heard was hit by a metal water pitcher hurled at her by Travis Burroughs after Judge Heard finished sentencing him to a life sentence with all but 70 years suspended. The Sheriff’s Department said that they will be pressing charges, not that there’s much more you can do when a guy’s already going down until he’s 106 years old.

It’s that time of the year again. Holiday Parties. Spiked eggnog and lampshades against the backdrop of a legal profession replete with problem drinkers. Along with with that, the increased holiday risk of impaired driving, sexual misconduct, and the general, alcohol-fueled stupidity that ‘spikes’ each holiday season.

It makes sense now, more than ever, to re-evaluate how holiday parties are implemented from Biglaw to small law. Balance is crucial. The good news is that equilibrium can be established in a way that adds to the festivities, rather than “grinching it” with a limited alternative selection of a few liters of soft drinks and bottled water. Think hard about “Mocktailing” your upcoming event. To provide a “blueprint” for your new, incredible, mocktail bar, I reached out to Tanya Pitch, a long-time Dallas, event bartender. Here is her take with recipes!

Mocktails, or zero-proof cocktails, are gaining quite the following these days. Many restaurants are finding that their patrons prefer more options than just mundane sodas, juices, and water. Mocktails also are making their way into the private party scene as well. There is a misconception that nondrinkers are such a minority group that it isn’t worth the effort/investment to create viable options for them.

Providing a mocktail bar at your next party is an opportunity to surprise and delight your audience while making you the BEST host this holiday season. The easiest way to build your holiday party bar is to create a cocktail menu with the catering company you’ve hired.

Don’t assume that guests who want a non-alcoholic beverage have unsophisticated palates. Ask the catering company you hired to help you get creative when it comes to both drink menus. It’s usually best to build the cocktail and mocktail menus off of one another. This will cut down on costs because the ingredients can be used in both the non-alcoholic and alcoholic drink recipes.
If you stock your bar properly, the experienced bartenders will be able to make some unique off-menu drinks as well.

Also, please don’t skimp on glassware. Oftentimes, non-alcoholic drinks are served in flimsy plastic cups, while other guests enjoying their martinis sip out of polished glassware. Without even trying, your holiday party could make the non-drinkers feel like outliers of the crowd. But if you create a full bar just for them, that includes nice glassware, the feeling of inclusion will abound. Holding a drink in a plastic cup may make one feel like a kid at an adult party. But holding a drink in nice stemware that looks different than everyone else’s can give your guests an automatic conversation starter that could help their networking game, as well as lead to interesting discussions about alcohol in general.

A few other additional costs you may possibly incur while providing a separate mocktail bar, besides glassware, are: additional bar staff, extra ice, additional table/bar rentals and, extra linens. The zero-proof/mocktail bar is a great tool to encourage responsible drinking while still participating in the cocktail culture. After all, why should alcohol have all of the fun?  Here are a few potential legally themed recipe options for your upcoming holiday bash. They are yours to use. Feel free to create your own fun drink names!

Mocktail zero proof cocktails (and of these can have alcohol added to them for those who wish to have an alcoholic version.

Objection Over-Yuled!
20 fresh mint leaves. 3 tablespoons lime juice.  4 ounces cranberry simple syrup.  Ice cubes.  4-ounces soda water.  Garnish (optional): fresh mint leaves, fresh cranberries, lime slices. For the cranberry simple syrup:  8 ounces fresh cranberries. 1 cup of water. 1 cup granulated sugar

Subordinate Santa
2 oz. cranberry simple syrup 2 oz. vodka 1/4 c. lime juice, plus extra for garnish 3 oz. ginger beer 1 Handful fresh or frozen cranberries for the cranberry simple syrup:  8 ounces fresh cranberries .1 cup water.  1 cup granulated sugar

Fa Law Law Law Law
1.5 oz. Black Tea .75 oz. Fresh Lemon Juice .5 oz. Simple Syrup .25 oz. Grenadine .25 oz. Raspberry Vinegar Shake ingredients together and then pour into a rocks glass over ice. Garnish with a lemon wheel.

Vested Remaindeer
Middle thumb-sized nub of turmeric 1 oz lime juice 1 oz Agave Syrup Shake and strain into a high ball glass. Top with soda water and a lime garnish

Elf Defense
2 ounces blackberry and raspberry puree 2 ounces cinnamon simple syrup 1/4-ounce fresh lemon juice 4 ounces Ale-8-One or Ginger Beer Orange peel garnish Combine all ingredients in a shaker and pour over ice into a highball glass. Garnish with fresh orange peel.

Litigation Libation
4 ounces orange juice ½ ounce heavy cream ½ ounce honey syrup (1-part honey, 1-part water, mixed well) 3 dashes vanilla extract 3 squirts salt tincture 3 drops orange flower water 6 drops pistachio extract
Combine all drink ingredients in a small cocktail shaker. Fill with crushed ice, then shake for 3 seconds. Pour into a large Collins glass. Top with crushed ice. Garnish with an orange peel rosette and sprinkles of powdered sugar and ground cinnamon.

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Brian Cuban (@bcuban) is The Addicted Lawyer. Brian is the author of the Amazon best-selling book, The Addicted Lawyer: Tales Of The Bar, Booze, Blow & Redemption (affiliate link). A graduate of the University of Pittsburgh School of Law, he somehow made it through as an alcoholic then added cocaine to his résumé as a practicing attorney. He went into recovery April 8, 2007. He left the practice of law and now writes and speaks on recovery topics, not only for the legal profession, but on recovery in general. He can be reached at brian@addictedlawyer.com.

Back in 2014, Alibaba Group, the massive Chinese e-commerce, retail, Internet, and technology company, raised $25 billion in its record-shattering initial public offering (including the option to sell more shares that underwriters exercised a few days after the original IPO). Prior to that, the largest IPO was the 2010 public debut of Agricultural Bank of China Ltd., at $22.1 billion. Agricultural Bank of China also increased its IPO size a bit after-the-fact in a fashion similar to Alibaba. One has to skip over another massive Chinese bank to get to the largest IPO ever from a U.S. firm: the iconic General Motors emerged from its bankruptcy filing with a spectacular $20.1 billion IPO in November of 2010. As I write this, General Motors has the fourth largest IPO in history.

Very soon though (probably the day this article is published, according to unnamed Reuters sources), the General Motors IPO will be knocked into fifth place. Shares in the massive, state-owned oil giant Saudi Aramco will be available to investors for the first time. An Aramco statement says that the company is pricing its IPO at 32 riyals, or $8.53, per share, which would raise $25.6 billion. In addition to giving Aramco the largest IPO ever, that level would put Aramco’s total market valuation at $1.7 trillion, making it by far the world’s most valuable publicly listed company. Sorry, Apple Inc.

Now, I’m no babe in the woods when it comes to the moral ambiguities of investing in the 21^st century. An enormous Chinese tech and Internet company, grossly swollen foreign banking institutions, and even an American-as-apple-pie/too-big-to-fail automaker are hardly philanthropic endeavors. Teasing out the ethical implications of investing in the simplest of 21^st century index funds would give Aristotle a headache, if not an aneurysm. Still, an oil company, and one which will remain mostly owned by an absolute monarchy that just started to let women drive and carves up journalists like so much Christmastime goose…doesn’t an investor have to draw the line somewhere?

I’m not going to go through every morally questionable thing that Saudi Arabia and Saudi nationals have done recently. Among other reasons, I try to keep this column to around 700 words per week. But, as someone who considers himself at least a third-rate journalist and is writing something unfavorable to Saudi Arabia right now, I suppose I’d be a coward if I didn’t briefly bring up Jamal Khashoggi. You all know the story at this point: Khashoggi went to his appointment at the Saudi consulate in Istanbul to get documents he needed for his pending marriage, and was almost immediately set upon and dismembered by 15 state-sponsored Saudi murderers. For the crime of criticizing Saudi Arabia and the leadership of its crown prince Mohammed bin Salman, to try to help the country become a better place for its people, Khashoggi was executed and his body desecrated. He was killed for doing his job as a journalist. What a bunch of bullshit.

One could say that, as troubling as many of his decisions are, at least some things have improved in Saudi Arabia under the rule of MbS. One could even justify participating in the Aramco IPO on the basis that its stated purposes include bringing in foreign investment, ultimately diversifying the economy of Saudi Arabia away from oil, and driving job growth in a country that desperately needs it. Opening up Saudi Arabia’s economy to make it less of a one-dimensional petrostate could only increase the level of freedom its people enjoy. But sometimes you need to require some real, dramatic improvement, a demonstrated willingness to change, before you volunteer to help someone stop being a train wreck.

So far, most major active fund managers are indeed steering clear of the Aramco IPO, “citing persistent concerns about risks around governance, the environment and regional geopolitics,” according to Reuters. That’s just a more diplomatic way of saying what I’m saying: Saudi Arabia, and by extension Aramco, both suck, and they need to get a lot better before we should voluntarily entrust them with (even more of) our hard-earned money.

In a year or two, given the sheer size of the IPO, those of us who invest in index funds probably aren’t going to have any choice but to own a little bit of Saudi Aramco. For now, however, maybe we should do our best to speak in the international language of money to tell Aramco we’re not cool with Saudi Arabia’s bullshit no matter how high the dividend is.

And in the name of all the pagan Yuletide gods, if I disappear into a consulate somewhere, please call someone.

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Jonathan Wolf is a litigation associate at a midsize, full-service Minnesota firm. He also teaches as an adjunct writing professor at Mitchell Hamline School of Law, has written for a wide variety of publications, and makes it both his business and his pleasure to be financially and scientifically literate. Any views he expresses are probably pure gold, but are nonetheless solely his own and should not be attributed to any organization with which he is affiliated. He wouldn’t want to share the credit anyway. He can be reached at jon_wolf@hotmail.com.

Back in 2015, when the concept of Hillary merely winning the popular vote was a farcical notion, Ted Cruz and his circle started making noise about imposing term limits on the federal judiciary. He was also talking about judicial elections, which are stupid, but there was a nut of an idea here so let’s throw the guy a bone. Several liberal legal scholars chimed in to say Cruz was on to something.

While Cruz has different ideological hopes and dreams, the idea that an 86-year-old cancer survivor is the only bulwark against the collapse of several basic constitutional protections doesn’t exactly inspire confidence in the American experiment. The courts are supposed to be lagging reflections of the electorate and the vagaries of the human lifespan shouldn’t dictate why Trump gets to pick two justices and Carter got none. As Erwin Chemerinsky put it, “a system of government that allows a handful of men and women to hold great power for such an extended period of time is, by nature, more feudal than democratic.” Regardless of politics, the very credibility of the judicial branch is undermined when the country views it as a race to find ideological zygotes and shove them into robes. When liberals openly questioned Merrick Garland’s fitness for the Court because he was already in his 60s, things are broken.

The folks at Fix the Court pointed me to a recent National Review column where John Fund made the conservative case for doing something about life tenure:

“Returning our courts to their proper place in our constitutional framework is a tall order, and not one to be solved by abandoning life tenure for Supreme Court justices. But the idea is a sensible step, enjoys support from both conservative and liberal legal scholars, and just might give Congress the opportunity to prove to the American people that it’s still capable of bipartisan action.”

Fund also endorsed our plan for 18-year terms. “The Fix the Court plan would preserve the Constitution’s guarantee of tenure during ‘good Behavior’ by having departing Supreme Court justices serve on one of the nation’s eleven appeals courts.”

Fund isn’t exactly the Republican base at this point, but that this idea still has some currency on the right is huge. There might actually be an opening to do something about this constitutional anachronism with a little bipartisan effort.

And yet, I’m sure the Democrats will find a way to screw this up. They’re already unironically talking about “court packing” so the work of building the instruments of their own destruction continues unabated. Back when Cruz pitched his plan, I asked Nan Aron of Alliance For Justice if this might be a good time for liberals and progressives to reach out and create some makeshift alliances on the right to secure a more sensible judiciary going forward. Her response, which was in line with most of the Democratic-leaning world at that point, was to question why one would ever want to do that. Certainly Republicans were holding up nominations and creating judicial emergencies around the country, but a Democratic president was on the horizon so why handcuff the cause?

Trump won. Republicans run the Senate. The advise and consent norm set by the Founders got a swift kick in the nuts from McConnell, and then they put Brewsky McDayplanner on the Court.

The idea that turnabout is fair play may have a visceral appeal but it basically never works. It’s the elimination of the filibuster all over again — Democrats give themselves a short-term today only to be bludgeoned to death with it tomorrow. Gerrymandering worked the same way for years until Democrats started calling for independent commissions whenever they own power instead of just blessing antidemocratic redistricting by gerrymandering things back their way.

McConnell is the greatest “tit for tat and tat and tat” player in the world. Court packing? Putting a Democratic rubber stamp on that is basically his wet dream. The only way out of this cycle is to flip the script. When Lucy’s going to pull out the football anyway, the answer isn’t a helmet, it’s to go play baseball. Put some neutral, fair term limits on these jobs.

There are even Republicans willing to help! That’s like stumbling over a unicorn, don’t waste that.

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

If you read legal blogs and publications regularly, you will occasionally find an editorial column mourning the lack of civility in the legal profession today. The author then follows up with a call for more-civil behavior among lawyers. In most cases, they make vague suggestions, such as extending professional courtesies, or just generally being “nice” to each other. Since these columns appear somewhat regularly, I assume that nothing is done, and the words fall upon deaf ears.

Recently, we were reminded what type of behavior is clearly uncivilized. A California lawyer sent opposing counsel numerous emails with profanities, slurs, and credible threats of violence. And his excuse? He claims to be using a “confidential negotiating tactic.” But his tactic may end up getting him into career-ending trouble and will serve as a warning to other attorneys who seek to use the “tactic” for themselves.

But why do calls for civility fall on deaf ears? Here are a few reasons.

First, it’s hard to define what it means to behave civilly. There’s no objective answer. Some say it is being able to disagree without being disagreeable. Others say acting professionally even when it is tempting to act otherwise. To put it another way, when does one cross the line into being obnoxious? Crude, offensive behavior is obviously uncivil, but is opposing counsel being uncivil when they disagree with your unquestionable belief that your client is clearly right? Or when opposing counsel annoys you by asking too many questions?

Second, some lawyers want to establish a reputation. Some newer lawyers have said that they are willing to take a close or even an unfavorable case to trial just to show opposing counsel that they are willing to go all the way. This is usually the case when a lawyer believes he or she will run into the same opposing counsel or law firm again in the future. Some just believe that it is better to be feared than to be loved. The problem is that while these lawyers want to make it clear they won’t take any crap, it can make them look like bullies.

Third, sometimes there is no win-win situation, and one side will clearly lose if it plays by the rules. Litigation between wealthy clients could present more opportunities for creative, peaceful resolutions since they have more assets that can be used to structure a settlement, but the middle class and the indigent don’t have that luxury. And sometimes, there is no misunderstanding between the parties. The landlord wants higher rent payments, and the tenant can’t afford it. The defendant is accused of embezzling company funds, and the company wants them back immediately. What’s a defense lawyer supposed to do when his client has no case, and opposing counsel is not willing to cut a deal? His client paid a lot of money with the hopes that his lawyer will use some fancy courtroom tricks to get him out of his mess.

Also, the lawyer does not want to lose face in front of a prominent client. For example, a lawyer might typically be willing to settle quickly if faced with a losing case, but what if the client was someone who has the clout and connections to make (or break) a lawyer’s future career? The lawyer might not want to look weak out of the fear that it may damage his reputation and cost potential clients or other opportunities.

Finally, being uncivil is sometimes part of the game. Why do most people want to go to law school? Some want a steady job. Others want to fight for their clients. Some of the most memorable cases (and movie screenplays) involved a lawyer standing up to unjust laws, unfair judges, or a team of high-priced lawyers defending evil corporations.

So is it possible for lawyers to act civilly? Yes, but realistically it’s not going to happen all the time. I’ve found that because every client, opposing counsel, judge, and issues are different, it is impossible to give a one-size-fits-all answer on how to act in a given situation.

The first thing I try to do is not take it personally. Keep in mind: lawyers are advocates for their clients going against other lawyers advocating for their clients. So some level of conflict should be inevitable.

Second, I always treat opposing counsel (or, in my case, tax auditors or collection officers) with respect regardless of whether my client and I are right or wrong. I make an effort to listen to their side of the story and try to explain this to my client. This does not mean that we have to agree with the other side or submit to their demands.

Third, is opposing counsel being uncivil for a reason? He might have had a bad day and could be taking it out on you (knowingly or not). In that case, it could be appropriate to be forgiving if they show proper remorse. Or opposing counsel might be using “confidential negotiation techniques” to try to intimidate you. If you suspect that, you will need to stand your ground and call the bluff.

Finally, I try to see if there is a way for my client to win while at the same time allow the opposing side to save face. If the opposing party thinks they will lose everything, including their reputation, they will likely used scorched-earth tactics that will unnecessarily prolong the dispute. The other party is likely to accept a settlement that will allow them to walk away with dignity.

While we pay lip service to achieving civility in the legal profession, the adversarial nature and the high stakes involved sometimes make it difficult. Opposing counsel chooses to take the low road for a number of reasons. But instead of complaining about it, you will have to learn how to deal with it.

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Steven Chung is a tax attorney in Los Angeles, California. He helps people with basic tax planning and resolve tax disputes. He is also sympathetic to people with large student loans. He can be reached via email at sachimalbe@excite.com. Or you can connect with him on Twitter (@stevenchung) and connect with him on LinkedIn.