Utah Bar Journal

Not long ago, I found myself arguing a motion for protective order before a magistrate judge in a California federal court. The subject of the motion? Opposing counsel had subpoenaed an important third-party witness for an all-day deposition on the Saturday of Easter weekend. Upon receiving the notice, I told opposing counsel of long-scheduled family travel plans I had for that weekend. I repeatedly implored counsel to notice the deposition for another date. He refused, and insisted that the deposition go forward on the holiday weekend. I do not know what motivated his intransigence. I do know there was no reason that the deposition could not be taken at a later, more convenient time. Given the witness's importance in the case, my client understandably wanted lead counsel to attend and examine the witness.

I work as hard as the next guy. I have spent my share of weekends in the office over the years and am not opposed to an occasional Saturday deposition. But neither my client nor I believed that long-standing family travel plans should bow to counsel's inflexibility. We filed a motion. Predictably, the court granted a protective order, requiring that the deposition not proceed on the noticed holiday weekend. The deposition went forward a few weeks later on a weekday. We had "won" this little skirmish, but we wasted the court's valuable time, and the client incurred needless expense associated with the motion.

The Preamble to the Utah Standards of Professionalism and Civility explains that lawyers' "conduct should be characterized at all times by personal courtesy and professional integrity in the fullest sense of those terms." Like many of the Standards, Standard 15 describes a basic tenet of decency and courtesy - that lawyers should work cooperatively with each other in scheduling depositions, hearings, and conferences. The litigation process necessarily impacts the schedules of many: judges, court staff, parties, third parties, and, of course, counsel. All are busy. Courts have full dockets, and counsel have tight schedules. Basic courtesy requires that there be flexibility and accommodation in scheduling matters.

The Utah Standards are not alone in their call for scheduling courtesy. State and local bar organizations around the country have adopted such rules and standards. All are phrased a bit differently, but the message is the same: counsel can and should cooperate with each other in scheduling. Some courts have adopted similar rules. For example, a local rule in the United States District Court for the Southern District of Florida provides that "[d]iscovery in this District is normally practiced withÉ cooperation and civility," and "[a] lawyer shall normally attempt to accommodate the calendars of opposing lawyers in scheduling discovery." U.S.D.C., S.D. Fla., Local Rule, Appendix A, Rule I.A.(1) & (2). Courts play an important role in policing - and imposing sanctions for - conduct of egregious offenders. See, e.g., Bernstein v. Boies, Schiller & Flexner, LLP, 416 F. Supp. 2d 1329, 1333 (S.D. Fla. 2006) (imposing sanctions for attorney's unilateral filing of scheduling report and "unreasonable and vexatious conduct").

In my experience, most Utah lawyers embrace the principles of courtesy set forth in Standard 15. They call or write each other before scheduling conferences or hearings. At a minimum, their deposition notices (if not preceded by a phone call) are accompanied by a letter explaining that, if the chosen dates are not convenient for the witnesses and counsel, then the propounding lawyer will cooperate in identifying convenient dates. Most lawyers also adjust previously agreed upon dates when reasonably and timely asked to do so. They do it not because a rule requires it, but because they are professionals. They also know that, if they expect to receive an accommodation when needed, they must be prepared to afford opposing counsel equal courtesy.

Standard 15 does not call for anything extraordinary. It does not require concessions that prejudice a client's legitimate rights. To the contrary, the Standard condemns those who seek scheduling changes "for tactical or unfair purpose." Standard 15 does, however, suggest that lawyers work cooperatively in scheduling discovery and court dates. Standard 14 provides that lawyers should explain to their clients that "they reserve the right to determine whether to grant accommodations to other counsel. . . in matters not directly affecting the merits."

The principles in Standard 15, if followed, make the practice of law much more enjoyable. They will surely eliminate motion practice over holiday weekend depositions.

Very recently, in reviewing my calendar, I found that I had agreed to a two-day arbitration in Salt Lake City that now conflicted with another promised date on my calendar. I first called opposing counsel. Then, together, we called the arbitrator. Both are first-rate Utah lawyers. I asked that we adjust the arbitration dates by one day to accommodate my scheduling conflict. Neither was obligated. If my request had not worked for them, or if the change had prejudiced the opposing party, I would not have expected an accommodation. But both checked their calendars and graciously extended the courtesy. I was grateful. That is the model - the spirit and intent - of Standard 15.