Structural Methods to Reverse the Advantage
Sharp practice relies on surprise, technicalities, and the exploitation of human error rather than the merits of a case. Courts can strip the strategic value from sharp practices by making these underhanded tactics backfire financially and procedurally. Courts, including arbitral tribunals, must ensure that underhanded tactics cost more than the strategic advantage they create.
- Mandatory Civility Codes: Enforcing local court rules that require lawyers to confer in good faith before filing any discovery motion.
- Automatic Stays: Granting immediate, routine extensions for deadlines when a party can show the opposition refused a reasonable request for time.
- Judicial Public Shaming: Detailing a lawyer's sharp practices in written, publicly accessible court opinions to damage their professional reputation.
- Cost Sanctions: Requiring the attorney, not their client, to personally pay the fees incurred by the other side to fix the results of the sharp practice.
Restoring the Genius Loci
Reversing sharp practice helps restore the court system's integrity, turning a hostile environment back into a fair venue for dispute resolution. A trauma-informed atmosphere is built on the daily behavior and communication styles of the people who run the system. The following are examples of trauma-informed practices.
- Proactive Bench Management: Judges setting clear expectations of mutual respect during the very first case management conference.
- Professionalism Mentorship: Bar associations pairing young lawyers with seasoned practitioners who model ethical, effective advocacy.
- Focus on the Merits: Structuring proceedings so cases are decided on facts, entirely eliminating the competitive edge of technical ambushes.