The Ninth Circuit today took pains to express its disdain for counsel's role in goading a district judge into Kafkaesque rulings. 

Holding that the district court abused its discretion in denying a request for more time and erred in granting summary judgment (and awarding almost $250,000 in attorney's fees!) against the plaintiff, who claimed to have authored skits that appeared in National Lampoon's TV: The Movie, the panel said this of defense counsel:

Perhaps contributing to the district court's errors and certainly compounding the harshness of its rulings, defense counsel disavowed any nod to professional courtesy, instead engaging in hardball tactics designed to avoid resolution of the merits of this case. We feel compelled to address defense counsel's unrelenting opposition to Ahanchian's counsel's reasonable requests. Our adversarial system depends on the principle that all sides to a dispute must be given the opportunity to fully advocate their views of the issues presented in a case. See Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003); Iva Ikuku Toguri D’Aquino v. United States, 192 F.2d 338, 367 (9th Cir. 1951). Here, defense counsel took knowing advantage of the constrained time to respond created by the local rules, the three-day federal holiday, and Ahanchian's lead counsel's prescheduled out-of-state obligation. Defense counsel steadfastly refused to stipulate to an extension of time, and when Ahanchian's counsel sought relief from the court, defense counsel filed fierce oppositions, even accusing Ahanchian’s counsel of unethical conduct. Such uncompromising behavior is not only inconsistent with general principles of professional conduct, but also undermines the truth-seeking function of our adversarial system. See Cal. Attorney Guidelines of Civility & Professionalism § 1 ("The dignity, decorum and courtesy that have traditionally characterized the courts and legal profession of civilized nations are not empty formalities. They are essential to an atmosphere that promotes justice and to an attorney’s responsibility for the fair and impartial administration of justice."); see also Marcangelo v. Boardwalk Regency, 47 F.3d 88, 90 (3d Cir. 1995) ("We do not approve of the 'hardball' tactics unfortunately used by some law firms today. The extension of normal courtesies and exercise of civility expedite litigation and are of substantial benefit to the administration of justice.").

Our adversarial system relies on attorneys to treat each other with a high degree of civility and respect. See Bateman, 231 F.3d at 1223 n.2 ("[A]t the risk of sounding naive or nostalgic, we lament the decline of collegiality and fair-dealing in the legal profession today, and believe courts should do what they can to emphasize these values."); Peterson v. BMI Refractories, 124 F.3d 1386, 1396 (11th Cir. 1997) ("There is no better guide to professional courtesy than the golden rule: you should treat opposing counsel the way you yourself would like to be treated."). Where, as here, there is no indication of bad faith, prejudice, or undue delay, attorneys should not oppose reasonable requests for extensions of time brought by their adversaries. See Cal. Attorney Guidelines of Civility & Prof. § 6.

Ahanchian v. Xenon Pictures, Inc., 08-56667, slip op. at 18151-52 (9th Cir. Nov. 3, 2010).

This sort of thing happens, on both sides of the docket.  The offending lawyers may think that crossing the line into perfidy against the profession won't hurt them, at least not in the short term and possibly not ever.  And that their client will pat them on the back for pulling out the brass knuckles.  And, who knows, that maybe they'll get a reputation for hardball and thus win the fear of opponents and admiration of potential clients.

That stinks.  We, lawyers and judges alike, have to police ourselves.  And so Blawgletter sincerely thanks and earnestly congratulates the panel for letting the rest of us know that we have brothers at the bar who have sinned against us all.