Litigation is a complex process built on the entirety of American history. Since the beginning, the judicial system has slowly ironed out kinks in the process to make it more reliable, focused on justice, and fair.
However, even though courtrooms have a vast wealth of precedents, laws, and general guidelines to work with, litigation ethics isn’t perfect.
There always seems to be something novel that the courtroom either hasn’t dealt with yet, or simply never found a reasonable solution to, and that leaves legal teams and litigation participants in a bit of a gray area.
Without clear, well-described, rules to follow, one’s litigation ethics come into question, and it’s possible to either act unethically or pass up great opportunities.
Today, we’re going to go over ethics in litigation, what they’re generally considered to be, what happens when it’s not as black and white as it should be, and how you can navigate those situations to maintain your integrity in the courtroom.
Let’s get started.
What is Ethics in Litigation?
Ethics in the courtroom largely boils down to exactly what it is in normal life. Your ethics is your sense of right and wrong, and how you approach situations that technically allow you to do something malicious, harmful, or deceitful.
In the courtroom, while there are plenty of precautions in place to minimize the room for such misbehavior, ethics do come into play quite frequently from either side.
Why is Ethics Important in Litigation?
In the United States judicial system, everything is based on dispensing justice fairly and in a manner that leaves no room for doubt regarding whether the end decision was right or wrong. Obviously, it doesn’t always work out, but by and large, it’s a better system than most.
For it to work properly, participants must maintain an ethical approach to their dealings in the courtroom.
This ensures that every other process, from gathering evidence, to presenting a case to the course or coming to a decision, is capable of being done according to the predetermined guidelines the judicial system has in place.
When participants forego their ethical obligations at any given chance, the sanctity of the courtroom and the judicial system’s focus on justice are both compromised.
Because of how far-reaching and powerful the judicial system is in the day-to-day lives of Americans, even small lapses of judgment that depreciate its credibility are serious offenses with long-lasting consequences on much more than just the participants in any given case.
Court cases also have a lot on the line in the majority of cases. From massive sums of money being on the line during a business dispute, to the life of the defendant, the costs are high when the system fails.
Not only that but because the legal field is highly competitive and fruitful, gray areas where litigation ethics can be incentivized to be mishandled can be problematic.
What are Gray Areas in Litigation?
We’ve touched on this a few times, but this is largely where litigation ethics comes into play the most. The legal system is well developed, but there are always new bits of uncharted territory popping up almost every day. When that happens, the strict guidelines and laws regulating the judicial system don’t provide a straightforward answer, and you have to put your litigation ethics to the test to ensure you’re handling your job ethically and in the best interest of the parties involved; not just doing whatever it takes to win.
A gray area might start before it even goes to court. You might be approached by clients who ask you to handle situations that aren’t necessarily clear-cut in terms of legality, or they might request you handle their case in a way that doesn’t match the code of ethics.
AI has recently created quite the legal storm, and with it, produced a number of legal “gray areas”. In fact, that happens very often when new, world-changing, tech is released.
Because it’s such novel technology, and the courtroom hasn’t had to deal with it before, there have already been situations where the court simply doesn’t have a lot of information to go off of, and litigation experts are putting their ethics to the test to ensure the precedents they set during this time are reflective of our judicial system’s purpose and long-lasting well into the future.
There are also far smaller and seemingly insignificant examples that occur every day.
Here’s a fictional example of ethics being handled poorly.
Pretend that you’re in a case revolving around theft. All the evidence has been presented to the court, but you find some legal loophole where it’s not specifically mentioned that you can’t harass the defendant’s family and enter their home under deceitful means to snag photos of their private residence. You do that, get photo evidence of an item matching the description of the stolen goods, and randomly present it to the court.
Now, that’s not a likely scenario at all, because there are strict rules regarding the gathering of evidence, but even if you could get away with doing something like that, you’ve done several unethical things in the process of doing it.
The court might become aware of that action and decide to throw it out, or at the very least, your reputation would suffer. Even if the court doesn’t take action, you’ve used unverified evidence and put it in front of a jury; thus, you’ve persuaded their decision in an unethical way. In a gray area, you might have even set a precedent that affects hundreds, if not thousands, of cases, going forward.
Navigating Legal Gray Areas in an Ethical Way
How you navigate gray areas determines quite a few things. First, it has a lot to do with how well you maintain your reputation, the relationships you make with your colleagues and similar social factors. Then, it also affects your ability to win. Even if you’re maintaining an ethical approach, gray areas are complicated, and you can easily end up costing yourself a case due to confusion or mishandling the situation.
Here are some key points to consider when you encounter a legal gray area and aren’t sure how to approach the situation while maintaining the ethical expectations of the legal system and society as a whole.
1: Maintain Your Own Sense of Ethics
First and foremost, a great starting point is to not compromise your own natural sense of right and wrong. This is why those participating in litigation need to be exceptionally moral and disciplined. When tempted, it’s easy for anyone to let their morals slip in order to achieve a desirable outcome. Especially when there are no concrete rules against it that will produce serious consequences.
By simply looking at the ethics that guide you through your day-to-day life, you can remove a lot of the worry from navigating such situations.
If you wouldn’t try to capitalize on a loophole in a malicious way in normal life, don’t do it in the courtroom. If you wouldn’t try to get away with something you know is wrong in normal life just because no one’s watching, maintain that ethical standard in the courtroom.
This will handle most of the major problems that can occur. After all, the judicial system does heavily rely on our collective morals and sense of ethics as a nation. So, exemplifying those ethics by default is going to help keep you on the right side of the courtroom.
2: Identify the Gray Area
Beyond just using your own common sense and morality as a guideline, there is a set list of actions you need to take. It starts with identifying that there is an actual gray area in the first place.
In many circumstances, you might not be aware that there are precedents already set, or you might have interpreted something wrong and misidentified it as a gray area when it’s not.
Going your own way and trying to leverage the gray area, in an ethical manner, of course, might end up with you ruining your own case.
Whenever you start to feel as if you’re headed into a gray area or uncharted territory, it’s time to start looking at any relevant laws you can find to ensure that you’re not doing anything unacceptable.
3: Get Advice and Look at Past Situations
Once you know you’re dealing with a gray area, and you have some options available to you, don’t just jump into decision-making. Even though it’s a gray area, there are potential consequences for every action you take.
A good way to handle this is to speak to other litigation professionals and have them weigh in. They might have dealt with a similar situation and made a mistake they can warn you about, or they might know how your planned action will go over with the court and guide you one way or the other.
You can also research similar situations and see how the teams involved handled those situations.
If you’re doing anything dramatically out of line with every past example, or you know very well that what you’re doing goes beyond ethical boundaries, it’s a good idea to stop, rethink your next move, and get more advice.
4: Consider the Consequences
As we said, there are always potential consequences to leveraging a gray area. Even if something isn’t against your moral compass, it might dance along a thin line in the court’s eyes. You have to remember that the court operates under a very strict set of rules, and even morally correct actions can be beyond the limits of the protocol.
As such, you need to weigh the risk of leveraging a gray area or bothering with it at all against the potential rewards.
Let’s say you’re a lawyer, and your client is on the defense in a case that will change their entire life. You see a gray area where you might be able to present something to the court that could possibly help them get a lighter sentence, but if it goes wrong, it can get them in far more trouble than they’re already in. Balancing the pros and cons, you’d avoid taking action on it.
That’s a straightforward and clear-cut example. Usually, it won’t be that easy to tell what the right decision is. That’s why the research and advice phase is so crucial. Any warning you can get that you’re going to cross lines is helpful.
5: Make the Decision
Once you’ve done as much as you can to maximize your chances of successfully leveraging the gray area in your favor without doing something that is openly unethical, it’s time to pull the trigger on it.
However, it is not the end of the road.
When you try to use gray areas to your advantage, you are responsible for the consequences that can potentially be handed down. Whether those are literal court-ordered consequences such as throwing your argument out, or consequences that your client deals with due to your decision.
You go into it knowing a lot is on the line, you make the decision, and you must be willing to take responsibility if it goes wrong.
Are Gray Areas Worth the Hassle?
With all this in mind, you might be wondering if it’s even worth dealing with gray areas at all. Whether they’re opportunities you can take advantage of in the courtroom, or if the case a client asks you to take on is gray from the get-go. Well, unfortunately, they’re not just worth it. They’re practically required.
Today’s legal landscape is complex, it’s only getting more complex with every passing year, and if you don’t learn how to navigate all kinds of gray areas, you’ll be letting yourself and your team down.
As such, this is one area where you want to put a lot of effort toward mastering the process we highlighted earlier.
If you need help navigating gray areas, advice on how to get better at it in the long run, or any other type of help with your litigation needs, call Litigation Legal Insights, today.