Vol. 40 No. 5
Mary Dunnewold is a legal writing instructor at Hamline University School of Law.
Most judges are reasonable people, trying to do their jobs and solve the problems that come up in their courtrooms. But sometimes judges get pushed to the limit by attorney behavior that reflects a lack of attention to professionalism. Some interesting orders and opinions result.
For instance, in a recent, much discussed Texas case, US District Judge Sam Sparks issued an order inviting counsel to a “kindergarten party.” The order indicated that
[t]he party will feature many exciting and informative lessons, including:
How to telephone and communicate with a lawyer
How to enter into reasonable agreements about deposition dates . . . [and]
An advanced seminar on not wasting the time of a busy federal judge and his staff because you are unable to practice law at the level of a first-year law student (Morris v. Coker, No. A-11-MD-712-SS (W.D. Texas Aug. 26, 2011)).
The order also suggested that counsel bring a sack lunch.
In an Arkansas case that provoked some comment, defense counsel brought a motion entitled “Motion to Require Plaintiff’s Counsel to Count to Ten before Making Categorical Statements that are Incorrect” (In re Prempro Products Liability Litigation, No. 3:05-cv-00074-BRW (E.D. Ark. Oct. 6, 2011)). The court granted the motion, but inquired in its written order: “[d]oes Defendant think it is ok if Plaintiff’s counsel makes a categorical statement that is incorrect—after counting to ten? Counsel is cautioned to refrain from making categorical statements that are incorrect, whether [before] or after a ten count.” An Arizona judge granted “Plaintiff’s Motion to Compel Acceptance of Lunch Invitation” to discuss settlement. The judge commented that “The Court has rarely seen a motion with more merit,” and took judicial notice that “Ruth’s Chris [Steakhouse], while open for dinner, is not open for lunch” (Physicians Choice of Arizona v. Mickey Miller, CV 2003-020242 (Maricopa Cty. July 21, 2006)).
And in response to a motion “riddled with unprofessional grammatical and typographical errors,” a federal judge in Florida took the time to “redline” the attorney’s written submission. He then ordered the authoring attorney to reread the local and federal rules of procedure, personally deliver to the client a copy of the redlined submission, and file a “Notice of Compliance” with the court (Nault v. The Evangelical Lutheran Good Samaritan Foundation, No. 6:09-cv-1229-Orl-31GJK (M.D. Fld. Sept. 15, 2009)).
Legal writing professors and other legal skills faculty love these cases because they reinforce some basic lessons about practice and professionalism. Competent communication skills are important. Timeliness is important. Basic facility with the rules of practice is important. But are there other lessons to take away?
In the classic novel To Kill a Mockingbird, lawyer Atticus Finch encourages his children, Scout and Jem, to put themselves in the shoes of other people. In fact, a hallmark of professionalism is the ability to work with other people productively to solve problems. To act like a professional in this respect means taking the advice of Atticus Finch: Consider the perspective of the people you are working with and try not to make their jobs harder than they have to be.
Consider the life of a judge. According to the American Judicature Society (AJS) (www.ajs.org/cji/cji_workload.asp), the workload of both federal and state court judges has increased dramatically in the past several decades. The decrease in funding for various aspects of the judicial system exacerbates the increase in case filings, resulting in a shortage both of judges to actually do the work and support personnel to assist them. And within this difficult context, by their nature, judges’ jobs require judges to read thousands of pages a month, including parties’ submissions, bench memos from their law clerks, and documents supporting motions and other matters they must decide.
Judges are swamped simply coping with the problems and issues that legitimately arise in the context of litigating cases. They are understandably impatient when thrown into the additional role of mediator at best or kindergarten cop at worst. And lawyers who behave badly in court, or who cross the line between effective advocacy and obstreperousness, risk developing a reputation that will do them no favors as they continue to practice. A lawyer who has made a judge’s life more difficult is unlikely to receive the benefit of the doubt in future conflicts, even if those conflicts involve legitimate matters like scheduling or case management.
Certain kinds of behaviors by lawyers are likely to push judges’ buttons, possibly resulting in a shaky reputation or relationship with the judge, or even in a scathing order or opinion. Professor Kathryn Sampson, who teaches legal writing at the University of Arkansas, recently asked a supreme court judge what buttons a lawyer could push to prompt a scathing opinion. She reported the judge’s response to a group of writing teachers and observed that the judge “had great energy for the answer.” Sampson then related five particularly egregious acts the judge had identified: (1) misconstruing the record; (2) making frivolous or “stretch” arguments; (3) using slang; (4) criticizing a very recent written opinion; and (5) quoting at length.
Underlying these egregious acts are a few factual observations the judge also related. First, judges have all read the record, so misstating its contents only casts doubt on a lawyer’s honesty. Further, judges work hard to arrive at what they believe to be the correct outcome and work hard deciding what to write; therefore, criticizing a recent opinion is bound to create some ire. Finally, like any other reader, a judge does not want to read quotes from authorities; judges want lawyers to tell them how the law intersects with the facts. Lawyers should not quote so much that it leaves a judge to guess at the parties’ arguments.
Nationally recognized legal writing expert Bryan Garner has made dozens of educational videos of federal and state judges commenting on writing, workload, and other aspects of judging. For instance, US District Judge James G. Carr, speaking on reputation, says in an interview, “If you have a reputation, for example, of knowing rules of evidence and being expert in them, you come in with a stronger hand. Is that fair? Probably not. But you are more likely to be viewed as trustworthy than the other guy.” The Honorable Phyllis A. Kravitch, a senior US circuit judge, speaks to the amount of reading the job requires: “I don’t think the average lawyer quite realizes the number of cases that we have, the number of motions judges have . . . . There are some days that I never stop reading, from the minute I get to the office to the minute I leave. And many, many weekends I take work home to finish reading.” These and other interviews from the AJS website are a great resource for information about what judges are looking for from attorneys.
Taking time to learn about the judge’s job, and thus better understand the judge’s perspective, may help you become a better professional and advocate for your client. And, in the end, these lessons transfer to other people you work with, including court personnel and other lawyers. If you expect you will ever need a scheduling accommodation, make a mistake, or need a little slack on a deadline (and, of course, who won’t?), you need to lay the groundwork by doing your best to build positive, mutually respectful relationships. Basic professionalism practices protect you by ensuring that your relationships work for you rather than against you.