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Lately, it seems that there is a lack of collegiality in the profession.

When I began practicing, it was possible to forget one’s concerns with another’s behavior or the dilemma du jour on the courthouse steps, and to adjourn with an opponent for a cup of coffee after having vigorously disputed his position moments earlier. We were friendly. Things have changed. It’s personal. Low blows, diversionary tactics and frowning faces abound. Nobody gives an inch.

Apparently other jurisdictions have encountered similar difficulties.

I can’t now recall how I ran across this case, which is ostensibly a measure of my abject senility, or representative of the fact that I am busy and often tired. It contained a novel procedural remedy, derived from Puerto Rico Rule of Civil Procedure 44.1(d), which states: “In the event any party or its lawyer has acted obstinately or frivolously, the court shall, in its judgment, impose on such person the payment of a sum for attorney’s fees which the court decides corresponds to such conduct.”

It was the title of the motion which caught my attention, however. It was called, “Plaintiff’s Motion for Express Finding of Obstinacy.” The case in which the motion to find that the defendant had acted in an obstinate manner was a medical malpractice action. This caught my eye, as that’s my practice area. I unwrapped several petite Almond Joys to facilitate comprehension of the court’s decision.

The court described the standard by which it might make a finding of obstinacy. Under federal law, “a finding of obstinacy requires that the court determine a litigant to have been unreasonably adamant or stubbornly litigious, beyond the acceptable demands of the litigation, thereby wasting time and causing the court and the other litigants unnecessary expense and delay.” Martinez-Alvarez v Ryder Memorial Hospital, 2010 WL 3431653, *18, U.S. District Court, District of Puerto Rico (Aug. 31, 2010).

The decision did not cite to any particular behavior during the trial which had prompted the initiation of such a motion, beyond indicating that the strategies employed by both parties during the discovery phase of the case and the jury trial had been “hard fought.”

The court added that the “parties called upon numerous experts and factual witnesses over the course of two weeks of trial. Evidentiary issues and other legal questions were disputed vigorously. In settlement discussions, the parties were far apart in terms of their valuation of the case.”

This sounded ominously familiar.

The court declined to find that the defendants had acted obstinately. It emphasized that “the course of the litigation was the result of honest disagreement and diligent advocacy, not obstinacy, rashness, or frivolousness. Defendants pursued strategies which they believed would be victorious. Many of the issues in the case turned upon highly complex assessments of medical issues. To further complicate matters, the evidence presented through testimony and documentary evidence was mixed and in many cases did not clearly lead to any single conclusion. Most notably, the primary cause of Adalberto Martínez’s death, whether by loss of blood, heart attack, infection, or preexisting conditions, was hotly disputed.”

Had the court found that there was obstinate, rash, frivolous or dilatory behavior which had tainted the proceedings, the movant would have been entitled to money damages. I submit that if Connecticut were to adopt the Motion for Determination of Obstinacy as a procedural cure for litigious shenanigans, the remedy should differ. The offending party should be required to treat its opponents with courtesy, kindness, justice and love for a period of at least 30 days, including, but not limited to, footing the bill for the coffee afterward, or perhaps, in the interests of inducing nutritional narcosis and the associated disregard of petty personal differences which the same might promote, an ice cream sandwich. •