When can a nonparent file suit for custody?

ATTENTION PARENTS!  The Texas Supreme Court recently delivered a split 5-4 opinion that is bound to raise eyebrows. The only issue presented is whether a nonparent, like a grandparent or step-parent, has standing under the Family Code to file a suit seeking custody of a child. But, the longstanding implications of this case might force parents to second-guess their decisions…especially when it comes to leaving their beloved babies with trustworthy individuals, like family, friends, or even nannies! This case is turning heads in the Texas family law community.

It’s important to note that this case is only about whether the nonparent has the right to file the suit. This case doesn’t address the standards for a nonparent to actually win the case at the conclusion. It is only about whether they have the right to bring the suit at all. Compare this difference to whether you have the right to open the door of the courthouse and walk inside versus whether you will win once you get there.

Based on the Court’s interpretation, the Family Code acknowledges that a limited group of nonparents—like grandparents or step-parents, who have operated in a parent-like role with regard to a child—may run to the courthouse and request preservation of that relationship over a parent’s objections.  In other words, nonparents who have operated in a parent-like role now have “standing,” or what is required for claims to be litigated and/or decided. For the first time, the courts have now acknowledged a doctrine of “in loco parentis” allowing someone who acts like a parent to have the right to override a parent’s constitutionally protected status.

The category of nonparents could be somewhat broad and include grandparents and step-parents as the obvious examples. This issue also has implications in same-sex relationships for the non-biological/non-adoptive parent of a same-sex couple. I’ve even seen this come up where a nanny tried to sue for custody by alleging the right to file suit under this heading.

Particularly, the Court held that under section 102.003(a)(9), a nonparent has “actual care, control, and possession of the child” if the nonparent operated in a parent-like role for at least six months by (1) sharing a principal residence with the child, (2) supporting the child’s regular physical and psychological needs, and (3) showing guidance, governance, and direction similar to that characteristically exerted on an everyday basis by parents with their offspring.  Interestingly, “the statute does not require the nonparent to have ultimate legal authority to control the child, nor does it require the parents to have wholly ceded or relinquished their own parent rights and responsibilities.”  Consider the facts of this case for further understanding:

Mother and Baby moved into Grandparents’ house.  Mother struggled with alcohol addiction and decided to temporarily seek help.  With Grandparents’ consent, Mother left Baby whilst she moved into a sober-living facility.  When Mother was away, Grandparents managed Baby’s day-to-day activities.  However, Mother only intended to be away for three months and routinely visited over the weekends to care for Baby.  Mother never intended to relinquish parental rights by letting Baby stay with Grandparents.  Nonetheless, Grandparents’ “actual care, control, and possession” of Baby for a period of six months gives them standing to modify a SAPCR order.  Raise any red flags?

A red flag was definitely raised for the dissent, filed by Justice Blacklock.  According to the dissent, the result of this case is that “parents who remain in control of their children’s lives can be forced into visitation and custody fights over their own children by any nonparent whose relationship with the child triggers the Court’s malleable ‘parent-like role’ standard.”  Indeed, once a case gets through those courthouse doors, a judge or several judges—not the parents—will inevitably determine whether or not to uphold the parents’ choices about their child’s future.  The dissent goes on to say that no one can fully stand in a parent’s shoes unless that parent steps out of those shoes and walks away first.

What do you think?  Based on the facts above, did Mom step out of her parental and walk away first?  We will soon find out, as the case was remanded to the trial court to determine the merits of the Grandparents’ petition.


This blog post was written by Saira Ukani, our summer law clerk intern out of University of Texas Law School. We appreciate her!

More on how to be a good witness

Last month’s article addressed 10 tips for being a good witness in a divorce hearing. Here are a few more tips for being a witness in court:

  1. Before you testify, picture the scene and try to refresh your memory.
  2. Neat appearance and proper dress are important. Don’t let your clothes distract from your message.
  3. Avoid distracting mannerisms. Stand upright, pay attention, and speak clearly. Avoid nervous habits, like leg shaking or playing with your hair.
  4. Don’t try to memorize what you are going to say.
  5. Be serious in the courtroom. Don’t make jokes or laugh if someone else does. Court is supposed to be a somber place with proper deference given to the seriousness of the issues.
  6. Speak clearly and loudly enough for the judge or jury to hear you.
  7. Listen carefully to the question. Don’t give snap answers. Understand the question before you answer.
  8. Explain your answer when appropriate. If you can’t answer with a “yes” or “no”, don’t feel forced to. Just say, that’s not a yes or no answer.
  9. Answer only the question asked. Don’t volunteer information. If someone asks you “are you wearing a watch?”, the right answer is “yes” or “no”. The wrong answer is “yes, and it is 10:30 am  on March 15, 2018.” See the difference?
  10. If your answer was not correctly stated or summarized, correct it immediately.
  11. Don’t give conclusions or opinions unless specifically asked. Stick to the facts. Let the Judge draw conclusions. Witnesses are in the fact-giving business. Judges are in the conclusion business.
  12. Use phrases that are accurate – “That is all I recall” versus “Nothing else happened”.
  13. Always be courteous, even if the lawyer questioning you isn’t.
  14. You are sworn to tell the truth. Tell it.
  15. If the judge interrupts you or a lawyer makes an objection, stop talking immediately. Wait for instructions from the judge.
  16. Give positive, definitive answers when possible. Avoid saying, “I think” or looking unsure about your responses.
  17. Try to not seem nervous.
  18. Do not lose your temper.
  19. If you don’t want to answer, avoid asking the judge “Do I have to answer that?”. It makes everyone’s ears perk up to listen and almost every time the answer will be yes.
  20. Don’t look to the lawyers for cues. You must answer what you know.
  21. Do not argue with the lawyer.
  22. Do not nod your head for “yes” or “no”. Speak clearly so your answer gets into the court reporter’s record.
  23. When walking to the stand, be confident – no smirk, smiles, or downcast look.
  24. If asked, “Have you spoken to anyone about this case?”, answer truthfully.
  25. Review these tips before you testify, so they are firmly implanted in your mind.

In conclusion, don’t feel like you have to be a perfect witness. Being a witness is stressful and everyone, including the Judge, knows it.

Hat tip to Cortney Harrison Bethmann and his article on AVVO 25 Tips for Being a Good Witness.

Beneficiary designation after divorce invalid — law upheld by US Supreme Court

The Supreme Court recently issued an opinion parsing out the practical concerns at play in a post-divorce life insurance case.  Specifically, in Sveen v. Melin, a former spouse designated as primary beneficiary in her ex-husband’s life-insurance policy urged the Court to dissect the constitutionality of a Minnesota statute that automatically revoked such designation upon divorce.  After review, the Supreme Court determined that revocation-upon-divorce statutes are indeed constitutional when applied retroactively.

To better understand the case at hand, consider the following facts: Mark Sveen married Kaye Melin in 1997 and designated her as the primary beneficiary of his life-insurance policy.  In 2002, Minnesota revised its code so that the designation of a spouse as a beneficiary would automatically be revoked upon divorce.  Mark and Kaye divorced in 2007, and much to the surprise of his children, he failed to update the beneficiary designation.  So, when Mark died in 2011, the insurance company was uncertain how to proceed: should it pay the proceeds to Mark’s ex-wife (Kaye), or alternatively, to Mark’s children?  Phrased differently, should the insurance company follow Mark’s original instruction, or alternatively, Minnesota’s new statute?  Given this predicament, the insurance company asked the Court for help.

In an 8-1 opinion, the Court held that the retroactive application of Minnesota’s revocation-upon-divorce statute does not violate the contracts clause of the Constitution.  According to the Court, the law in this case was meant to reflect the policyholder’s intent, thus supporting, rather than frustrating, the contractual scheme.  Reasonably so, Mark, amongst many others, would probably not want his life insurance proceeds to pass to his ex-wife.  Furthermore, the law in this case was unlikely to defeat the policyholder’s expectations, as the policyholder could not sensibly assume a beneficiary designation would remain in place post-divorce.  Moreover, the law in this case purely functioned as a default rule, which the policyholder could undo at any point in time by submitting a new beneficiary designation form.  According to the Court, the hassle, or lack thereof, of such negligible paperwork does not violate the contracts clause under its established precedent.

Like Minnesota, Texas has a similar statute under the Texas Family Code §9.301, which is why the Supreme Court’s decision is particularly relevant to us.  In Texas, a divorce invalidates any pre-divorce designation of the former spouse as a beneficiary of life insurance unless (1) the decree designates the insured’s former spouse as the beneficiary, (2) the insured re-designates the former spouse as the beneficiary after rendition of the decree, or (3) the former spouse is designated to receive the proceeds in trust for, on behalf of, or for the benefit of a child or a dependent of either former spouse.  It is important to keep in mind, however, that this state statute is preempted by ERISA!


This post comes from Saira Ukani, summer law clerk for O’Neil Wysocki. Saira is a law student at the University of Texas School of Law. She is interested in family law as a career after law school. We are happy to have her helping with our blog as well!

Can you track your spouse’s car or rummage through her smartphone?

Hat tip to Pierre Grosdiddier at Haynes and Boone for the article in the June Texas Bar Journal entitled Privacy Matters. He poses the question as to whether putting a tracking device on a car or rummaging through your spouse’s cellphone are “no-no’s”. Texas Penal Code 16.06 prohibits tracking a vehicle owned by another person. But what happens if a car is jointly owned community property? A Harris County district judge recently refused to apply Penal Code 16.06 to a situation where the car was jointly owned community property, finding no violation under the law for putting a tracking device on a car titled in both names because it is a jointly managed community asset. Of course, this begs the question, what happens if the car is in one spouse’s name but purchased during the marriage and therefore a special management community asset?

On the other hand, the Dallas Court of Appeals held that a spouse was entitled to privacy in his or her cellphone, even if the cellphone is presumptively community property. The Dallas Court relied on factors such as the similarity between a smartphone and a computer under the wiretap laws, the expectation of privacy by a spouse in the phone, the exclusivity of use of the phone by the spouse, and the password protecting of the phone. Thus, information obtained from the phone was illegal and could not be used in court.

Check out the video from the State Bar of Texas here: https://www.youtube.com/watch?v=TvcxJcrFg4A&feature=youtu.be 

And check out the article in the Texas Bar Journal here: https://editions.mydigitalpublication.com/publication/?i=499958#{%22issue_id%22:499958,%22page%22:14}



Anticipated change of circumstances does not support modification

Where a change of circumstances is anticipated by the parties prior to entry of an order, such change does not rise to a “material and substantial change of circumstances to support modification”. The First District Court of Appeals confirmed this in their recent holding in Smith v. Karanja. Smith v. Karanja, 2018 WL 761905 (Tex. App. – Houston [1st Dist.] 2018, no pet.). “If a circumstance was sufficiently contemplated at the time of an original agreement, its eventuality is not a changed circumstance, but instead an anticipated circumstance that cannot be evidence of a material or substantial change of circumstances.” Id. The Houston Court relied on the Warren case out of Austin in support.  Id. 

In Warren, the mother’s move was anticipated at the time of the original agreement because her and then-boyfriend, now husband, was military at the time of the agreement.   Warren v. Ulatoski, 2016 WL 426999 at *5 (Tex. App.-Austin 2016, no pet.)  Therefore, the event of the move actually occurring could not be a changed circumstance, but only an anticipated circumstance addressed by the original agreement. Id.  The Houston Court pointed to the fact that since mother’s husband was active-duty military and thus subject to relocation, the actual occurrence of relocation was contemplated by the parties at the time of the prior order.

In 2006, the Austin Court of Appeals determined that changes anticipated in the original divorce decree do not thereafter rise to the level of material and substantial changes. Zieifman v. Michels, 212 S.W.3d 582 (Tex. App. – Austin 2006). At the time of the divorce, the parties entered into a negotiated agreement that their children would attend certain schools. Id. They further agreed that if they were unable to agree on educational decisions, they would follow the recommendations of the teacher of the child at issue. Id. Thus, the agreement contemplated that the child would age, specified the schools agreed upon and even the alternatives, and provided a mechanism for dispute resolution should a disagreement arise. Id. Mother sought modification of the school restrictions to allow the child to attend a private school that was not part of the original agreement, but Father objected. Id. The Austin Court noted that the policy behind the requirement of a material and substantial change is encourage stability in conservatorship and prevent constant relitigation with respect to children, based on the doctrine of res judicata as to the child’s best interest at the time of the prior order. Id. at 595, citing In re M.N.G., 113 S.W.3d 27, 33 (Tex.App.-Fort Worth 2003, no pet.); Watts v. Watts, 563 S.W.2d 314, 316 (Tex.Civ.App.-Dallas 1978, writ ref’d n.r.e.).  Thus, the party seeking modification bears the burden of demonstrating a material and substantial change in circumstances since the original decree. Id., citing Bates, 81 S.W.3d at 423. The requirement of this showing “serves a valid purpose of significantly limiting the trial judge’s discretion and prevents the modification statute from being unconstitutionally broad.” Id., citing M.N.G., 113 S.W.3d at 34. Therefore, the Austin Court held that the parties agreed as to the schools the child would attend, anticipated that they might disagree about educational decisions in the future, and provided a mechanism for resolving such disagreements. Id. “At the time of their divorce, the parties chose to send their children to public schools unless they agreed otherwise. They also correctly anticipated that they might disagree about educational decisions concerning the children in the future and included an agreed mechanism in the decree for resolving any such disagreements.” Id. at 596. Therefore, the changes Mother sought were anticipated at the time of divorce, negotiated, and addressed. Such anticipated changes could not rise to the level of a material and substantial change sufficient to warrant modification of the prior order. Id.


How do courts define a person’s “minimum reasonable needs” for purposes of spousal maintenance payments?

Once a court determines that a spouse is eligible to receive maintenance in a divorce case, it must then analyze all relevant factors to determine the nature, amount, duration, and manner of the periodic payments. One of those factors includes the spouse’s ability to provide for his or her “minimum reasonable needs” independently, considering his or her financial resources.

But what does that mean?

Determining a spouse’s minimum reasonable needs is a fact-specific determination made by the trial court on a case-by-case basis.[1] Although the law does not define “minimum reasonable needs,” the stated legislative purpose is to provide a spouse with a temporary rehabilitative measure to enable the spouse to become self-supporting.[2]

To determine a spouse’s minimum reasonable needs, the court must first examine the evidence presented at trial regarding the expenses and property of the spouse seeking maintenance.[3] Expenses may include mortgage payments, utilities, car payments, insurance, medical expenses, and groceries.[4]

Beyond a spouse’s expenses and property, the court may examine a variety of other factors impacting a spouse’s earning ability, such as mental health. For example, in one case, a court awarded spousal maintenance in the amount of $3,500 per month for ten years based on evidence that the wife, whose only source of income was Social Security, suffered from anxiety and low self-esteem following the parties’ 40-year marriage.[5]

Physical impairment may also be considered, such as the case where the trial court awarded maintenance to the wife in a 10-year marriage who testified at trial that she was diabetic, blind, and therefore unable to work while raising the parties’ daughter.[6]

A spouse’s educational background also impacts his or her ability to earn, as another case shows where the wife in a 14-year marriage was entitled to maintenance while she completed her education. The court reasoned that the wife could not support herself while working full-time at minimum wage and also taking classes full-time to finish her degree.[7]

As illustrated above, a trial court has broad authority to consider a wide variety of factors when determining a spouse’s minimum reasonable needs and/or his or her ability to meet those needs, including expenses, property, mental and physical health, and education. The spouse must present evidence at trial to prove both his or her expenses as well as any barriers preventing the spouse from being able to pay those expenses. It is also important to remember that a spouse’s inability to meet his or her minimum reasonable needs is only one of the factors the court will consider when awarding spousal maintenance, and evidence supporting the other determinative factors must also be presented.

[1] Matter of Marriage of Hale, 975 S.W.2d 694, 698 (Tex. App.—Texarkana 1998, no pet.); Lopez v. Lopez, 55 S.W.3d 194, 198 (Tex. App.—Corpus Christi 2001, no pet.).

[2] Acts of June 13, 1995, 74th Leg., R.S. ch. 655, § 10.01(a), 1995 Tex. Sess. Law Serv. ch. 655 (formerly codified as Tex. Fam. Code Ann. § 3.9601, repealed by Acts of April 17, 1997, 75th Leg., R.S., ch. 7, § 1, 1997 Tex. Sess. Law Serv. ch. 7).

[3] See Petra v. Petra, 2010 WL 374388, *2 (Tex. App.—San Antonio 2010, no pet.) (mem. op.).

[4] Chafino v. Chafino, 228 S.W.3d 467, 475 (Tex. App.—El Paso 2007, no pet.); see also Amos v. Amos, 79 S.W.3d 747, 750 (Tex. App.—Corpus Christi 2002, no pet.); Stafford v. Stafford, 2005 WL 3201894 (Tex. App.—Tyler 2005, no pet.) (mem. op.).

[5] Tex. Fam. Code Ann. §§ 8.051(2), 8.052, 8.053. Slicker v. Slicker, 464 S.W.3d 850 (Tex. App.—Dallas 2015), reh’g overruled, (June 25, 2015).

[6] Ayala v. Ayala, 387 S.W.3d 721 (Tex. App.—Houston 1st Dist. 2011), reh’g overruled, (Aug. 26, 2011).

[7] Alexander v. Alexander, 982 S.W.2d 116 (Tex. App.—Houston 1st Dist. 1998).

How to be a good witness

Having to testify in your divorce trial or that of a friend or relative? The top, most important tip for any witness is to just tell the truth. That may seem like an obvious statement. But, when you are on the stand and feel like the world is caving in because everyone is looking at you, it is easy for your mind to not think straight or clearly. You may not think of all of the aspects of a question. For example, if asked about your observations of a fight between the parents in front of the children that you witnessed, you may forget some details when you are telling the story in court. While you may have told the truth, it is not the whole truth. If you know that you are going to be asked about certain topics, try to refresh your memory before you testify and have the relevant details in your mind.

Here’s some tips for how to be a good witness:

  1. Tell all of the truth. Don’t tell part of the truth. Don’t spin the truth to your viewpoint. Don’t exaggerate.
  2. Answer only the questions asked. Don’t go off on a tangent or try to tell other things you want to talk about. You will be called down by the judge.
  3. Look at the judge. The judge is your audience in most family law hearings.
  4. Control your emotions. While measured emotion can be useful to make a point,  unchecked emotion such as anger or sadness can cause damage to your credibility as a witness.
  5. Be positive. Taking cheap shots or intentionally slinging mud will not go over well. Allow the judge to draw his own conclusions based on your observations.
  6. The judge sees everything. Every facial expression that happens in court, even when sitting in the audience, gets noticed.
  7. Confront negative evidence head-on. Don’t leave the opposing attorney any “gotcha” moments. Be upfront about everything that may come up.
  8. Listen to the question carefully and fully before giving an answer. Watch for the opposing attorney to reframe the question into something that mischaracterizes the witness’ statements.
  9. Focus on your theory of the case and not the “rabbit trails” the other side is pursuing.
  10. Be the voice of reason. Judges appreciate those with objectivity and problem-solving mentality.

Hat tip to Brad Litchfield and his article 10 Case-Winning Witness Prep Tips from FamilyLawyerMagazine.com


Using Venmo as a Vehicle for Hidden Assets and Fraud in Divorce

Millennials have grown up, and while they were busy revolutionizing the technology sector with smartphone applications like Venmo, the law has not adapted to the changing realities of how people interact. Venmo is a smartphone app, but it can be used as a tool by devious parties to the detriment of spouses and children.  It uses a person’s Facebook account to verify their identity, and to produce a list of people with whom that person can send and receive money. After populating this list, and verifying identities through Facebook, Venmo syncs up with a person’s bank account, where it can deposit and withdraw funds with ease.  Once set up, a party is not limited to exchanging funds to only their Facebook friends, but can receive funds from anyone, including employers and buyers of goods. If this transfer was instantaneous, there wouldn’t be a problem, Venmo would simply serve as a bridge, linking two bank accounts, similar to a direct deposit.

However, Venmo is not a bridge, it is a bridge with a parking lot in the middle of it.  Money is sent from the transmitting bank account, received and held by Venmo, and then only upon instruction from the receiving party are funds transferred from Venmo into the receiving bank account.  This payment “trigger” is the issue.

In the world of family law, Venmo is a problem that has not been fully realized yet.  More employers are paying their employees through Venmo, particularly in the wedding industry (planners, DJ’s, florists, bakers, professional photographers, etc.).  If that employee never instructs Venmo to deposit the funds received as wages into the receiving bank account, a problem arises.  The party’s bank account would show a zero balance, when in reality, Venmo could be holding thousands of dollars on the employee’s behalf.  In the case of a wedding photographer, a single day’s shoot could easily yield $3,000.  If that photographer worked every weekend in a month, there could be $12,000.00 held in Venmo that is not accounted for. That party can essentially park assets in Venmo, wait for their court date or a final order to be signed, and transfer funds upon the entry of the order (or thirty days later if they are smart).

Venmo evades traditional discovery. Through the tactics above, it can be used to hide community assets in a divorce, or to minimize income in child support amounts in suits affecting the parent-child relationship.  The only possibility of finding funds held by Venmo, is to conduct exhaustive discovery, which is expensive, easily costing a client at least $5,000 to request, respond to, and evaluate.  Most attorneys of clients seeking more economical representation use discovery as a tool of last resort, and rely solely on Rule 11 agreements, verified inventories and appraisements, pay stubs, and bank account statements.

Why does Venmo matter in a discovery context? The Office of the Attorney General does not ask for Venmo records in their discovery requests in child support cases.  Older attorneys do not know Venmo exists, and those who are aware of its existence rarely send requests for production of Venmo records in discovery.  A party can say they receive little to no wages, produce bank accounts and inventories showing very low balances, and be ordered to pay minimum wage guideline child support, when in reality they earn many times minimum wage.  In the divorce context, a party can hide large sums of cash from their spouse in Venmo, distorting property divisions.  They can sell certain assets or goods, require payment through Venmo, then claim they gave it away as a gift or don’t know what happened to the asset, without having to ever disclose the actual value received for the goods.

Venmo is neither a bank account, nor is it a social media account, but lies somewhere in between, as a smartphone app that vaguely resembles an escrow account or clearing house.  Unless attorneys are proactive in regards to new technological developments like Venmo, including requesting screenshots of a party’s Venmo “feed,” “transfers,” and “activity,” the problem will remain.

Day of Civility – What’s it all about?

Today is the Day of Civility in Texas.

What does that mean exactly? Well, once a year, the legal community in Texas takes an entire day to focus on and improve the conduct of lawyers and to celebrate the importance of civility in our legal system.  This day—known as the Day of Civility—was created to encourage legal professionals to aspire to the highest levels of courteous and professional interaction with judges, peers, adversaries, and workplace colleagues.  This spirit of professionalism inspired the promulgation of the Texas Lawyer’s Creed in 1989, which serves as every lawyer’s “how-to” guide on civility. Its preamble states that, “[t]he conduct of a lawyer should be characterized at all times by honesty, candor, and fairness.”

The State Bar of Texas urges all local bar associations to participate in a Day of Civility—both to educate and to celebrate all members of the bar.  The Dallas Bar Association will host its Day of Civility today at the historic Belo Mansion in downtown Dallas. The event features speakers and dignitaries from around the state, including Justice Eva Guzman of the Supreme Court of Texas, Tom Vick, President of the State Bar of Texas, the Honorable Carolyn Wright, Justice of the Fifth District Court of Appeals, and Royal Ferguson, Dean of UNT Dallas College of Law.

So why is civility so important? Why do we need a Day of Civility?

Justice Anthony Kennedy succinctly summarized the importance of civility in his 1997 speech at the American Bar Association’s Annual Meeting, stating: “[Civility] … is not some bumper-sticker slogan, ‘Have you hugged your adversary today?’ Civility is the mark of an accomplished and superb professional.”

P.T. Barnum, whose life is the subject of the recent hit movie The Greatest Showman, also praised civility, stating that “politeness and civility are the best capital ever invested in business.”

Civility–encompassing respect, professionalism, candor, honesty, and fairness–is espoused by OWL Attorneys and staff alike.

Here are “The 25 Rules of Considerate Conduct” for you to follow to ensure perfectly civil conduct:

  1. Pay attention
  2. Acknowledge others
  3. Think the best
  4. Listen
  5. Be inclusive
  6. Speak kindly
  7. Don’t speak ill
  8. Accept and give praise
  9. Respect even a subtle “no”
  10. Respect others’ opinions
  11. Mind your body
  12. Be agreeable
  13. Keep it down (and rediscover silence)
  14. Respect other people’s time
  15. Respect other people’s space
  16. Apologize earnestly and thoughtfully
  17. Assert yourself
  18. Avoid personal questions
  19. Care for your guests
  20. Be a considerate guest
  21. Think twice before asking for favors
  22. Refrain from idle complaints
  23. Give constructive criticism
  24. Respect the environment and be gentle to animals
  25. Don’t shift responsibility and blame.

From Choosing Civility. Copyright © 2002 P. M. Forni. (St. Martin’s Press, 2002)

Happy Day of Civility from O’Neil Wysocki!

Does civility mean hugging your opposing lawyer? (Part 4 of 4)

The big topic among Texas lawyers this week is the Texas Day of Civility in Law, fashioned by joint proclamation by the Texas Supreme Court and Court of Criminal Appeals, the two highest courts in our state. Civility is supposed to be at the core of our profession. But, what does it mean?

First, let’s examine what civility does not mean. Civility is not the absence of disagreement. In fact, the very notion of civility assumes that there will be disagreement and discussion. Our legal system roots in disagreement while providing a method for resolution.

Likewise, civility is not the absence of criticism. The process requires pointing out errors or shortcomings of the other person, such as errors in another’s brief or shortcomings of a legal argument.

Civility does not require that you like a person. Civility requires respect, but not fondness.

Civility is not equivalent to good manners alone. Good manners alone is not sufficient. For example, politely refusing to hire a female lawyer because the firm has a policy against hiring women lawyers is not civil behavior.

Civility comes from French and Latin etymologies, suggesting that one should exhibit good behavior for the good of a community. The principles of civility in law permeate the entire legal system, defining at the core what it means to be a lawyer. Such principles speak to the lawyer’s dual duty as an officer of legal system and the advocate of the client. Even in advocating for a client, a lawyer must show respect for the legal system. Zealous advocacy does not extend to offensive tactics, discourtesy, or disrespect.

A 2007 survey conducted by the Illinois Supreme Court Commission on Professionalism revealed that 71% of the lawyers surveyed reported experience uncivil behavior, characterized as follows:

  • Rudeness – described at sarcasm, condescending comments, swearing, or inappropriate interruption.
  • Strategic incivility – strategically employing uncivil behavior in an attempt to gain the upper hand such as deliberate misrepresentation of the facts, not agreeing to reasonable requests for accommodation, indiscriminate or frivolous use of pleadings, and inflammatory writing in briefs or motions.

Civility in our profession provides positive outcomes for the legal system and the lawyers involved. Civil lawyers are more effective and achieve better outcomes. Civil lawyers build better reputations. Civility breeds job satisfaction among lawyers in a profession that tends the opposite.

Hat tip to Jayne R. Reardon Civility as the Core of Professionalism