Self-Represented Parties and Sharp Practice by Counsel – Should We Be Thinking Differently?

War is the means by which nation states have sometimes resolved their differences. Litigation is the means by which people in our society sometimes resolve their differences. In both cases, there is value in prescribing the rules of engagement. As wars between sovereign states have become less common and wars between sovereign states and insurgencies have become more the norm, the traditional rules of war seem to have become less relevant. This is presumably because rules that work to govern combat between traditional armies don’t effectively address asymmetric disputes where conventional militaries face off against “guerrillas”, “terrorists” or “freedom fighters” (the language depending on perspective and context). Of course litigation is not and should not be conducted like a war. My point is that necessary rules of engagement can be based on principles that no longer apply in some circumstances. Our professional conduct rules may…

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