The View from WAY Behind the Bench

The Bencher—March/April 2016

By Gabriela Acosta, Caitlin Barnes, Bren Chambers, Caitlin Wain, and Tessie Smith

The following list of lawyer “Dos and Don’ts” was compiled from the professional experiences of several judicial clerks who are members of the Robert Van Pelt AIC in Lincoln, Nebraska.

Credibility is Important

  • Proofread your briefs, using correct pronouns and grammar. Even if the argument is well reasoned, typos and poor grammar can detract from the message.
  • Check the accuracy and completeness of citations, and make sure quotes are correctly reproduced and attributed.
  • Accurately cite to relevant cases and to the record. Assume a judicial clerk will read everything you cite. Nothing ruins an attorney’s credibility faster than citing a case for a proposition it does not support or arguing statements made in the case but out of context.
  • Do not omit key facts. Acknowledge any obvious weaknesses and explain why your argument still has merit.
  • Do not invent law. If there is no existing law on point, use any relevant and available legal reasoning.

Write and Speak Plainly

Judges and their judicial clerks want to understand what you are saying or writing the first time they hear or read it. Few things are more frustrating than having to read a paragraph more than once in order to understand it. Plain-language writing is particularly important in pro se cases, as pro se litigants will rarely have your education or legal training.

Present Your Position and Know Your Audience

Do not assume the court knows the facts of your case as well as you do. Clearly state the relevant statutory/case law framework before delving into the finer points of your argument. Judges and clerks appreciate not having to spend a long time learning about an unfamiliar area of the law because the attorney has laid out the basics in a brief.

Once you reach appellate oral argument, lead with your strongest argument. The appellate court is familiar with the record and your briefs, and if you have briefed your arguments well, you need not re-hash everything at oral argument. Start with your strongest points to avoid running out of time if the court has questions that divert attention from your prepared statements.

Be Nice

Be civil and professional to the judge and court personnel, especially the courtroom deputy or bailiff. Be equally civil and professional to opposing counsel, even if an opposing attorney is the most difficult person you have ever had the displeasure of meeting. Nothing tests a judge’s patience faster and more completely than attorney spitting matches. When an attorney is difficult to work with and unwilling to be flexible to accommodate requests from opposing counsel or the court, it leaves a negative impression that tends to permeate all interactions between the attorney and the court.

Professionalism also applies to brief writing. If you are inclined to take shots at opposing counsel, draft two versions of the brief; one with all of the nasty things you would like to say to opposing counsel, and one without. Read the first brief and pat yourself on the back for all of the wonderful zingers you have directed at opposing counsel—then delete it and submit the second one.

Be civil and respectful to the parties, even when you are dealing with a pro se litigant who is not civil and respectful. Some pro se litigants are personally offended by the contents of motions, briefs, and orders, and they respond with insults and obscenities. A snarky retort to such displays of emotion will not benefit you and will likely undermine your credibility.

Follow the Rules

How much time do you have to file your reply brief? Does your motion need an accompanying brief? Do you need to submit a proposed order to the judge? Is there a page limit or other formatting requirements for briefs? Answers to all of these questions and more may be found in the court’s published rules, often available on the court’s website. Attorneys who elect not to read those rules run the risk of blowing through deadlines or subjecting themselves to otherwise unnecessary motion practice, the consequences of which may affect the outcome of the case. If you cannot meet a deadline, file a request for an extension of time before the deadline has passed.

Most judges enforce the rules and orders of the court without regard to whether the party is represented or pro se. Pro se litigants face the daunting task of prosecuting a case without the benefits of schedulers, assistants, and associates, and their failure to prosecute a case diligently often results in dismissal of their claims and defenses. If the court allows lawyers to blow deadlines without consequence or sanction, equal justice for all, or the appearance of equal justice, is compromised.

Remember the Liberal Construction Afforded to Pro Se Cases

The court must liberally construe the pro se party’s pleadings and filings. Construing pro se documents is like taking a law school exam. Because pro se litigants lack legal expertise, they may not be able to articulate specific legal principles. The court must decipher what the plaintiff is trying to say, spot issues based on the pro se party’s version of the facts, and decide the case based on the facts and law. While lawyers always have a duty to inform the court of all relevant and binding law (even when it appears adverse), the importance and purpose of that duty is pronounced when dealing with a pro se party who lacks the ability to cite relevant law to the court.

Practicing Before the Trial Court

Clearly Identify Evidence Cited in Support of Your Motions

Sifting through evidentiary submissions takes a lot of time. So put yourself in the court’s shoes and implement any methods (within the rules) to streamline the presentation of evidence.

  • If a brief relies heavily upon deposition testimony, direct the court’s attention to the relevant evidence by providing a separate listing of the deposition portions actually cited.
  • Submit only the evidence the court needs to see; e.g., if only two pages of a deposition are relevant, submit only those pages.

Submit Briefs in the Most Useable Format

If the court requires paper briefs, also send electronic copies to the judge’s chambers. Particularly in fact-intensive cases, submitting a brief in an electronic format can eliminate the need to retype a large portion of the statement of facts and/or law when drafting a written decision. If reasonably possible, add hyperlinks to the cases cited within the electronic filing; this creates an efficient way for lawyers to check their citations, and it makes the court’s review easier and faster.

Use Motions to Compel Sparingly

Talk more; file less. Many attorneys make a cursory effort to resolve discovery disputes prior to filing a motion to compel. But the attorneys know far more about their case than the court ever will, and the court has limited time to become familiar with the details of a case. By spending additional time talking to each other and eliminating as many extraneous issues as you can, you are doing the court and your clients a substantial favor.

The same principle applies to cases with pro se litigants. Make every effort to communicate with pro se parties about discovery and other issues that may be resolved without involving the court. Many attorneys are reluctant or unwilling to speak directly to pro se parties, but do not ask the court to supervise communications or mediate disputes that could be resolved by a phone call between you and the pro se litigant.

Finally, if you must file a motion to compel, remember that the court cannot make parties produce something they do not have. Once a party represents that it does not possess certain documents and/or other tangible items, absent an evidentiary showing to the contrary, the court has no ability to force production of those materials.

Use Motions for Sanctions Even More Sparingly

Nothing is more depressing to the court than motions for sanctions, especially when filed early in the case. Once sanctions are requested, the litigation usually becomes combative. And particularly in the context of a motion for sanctions for perceived discovery indiscretions, requests for sanctions often lead to finger-pointing and the recitation of every perceived bad act by all parties involved. As much as you may be annoyed, enraged, or otherwise displeased with opposing counsel, please save motions for sanctions for the most egregious behavior.

Talk about Electronic Discovery at the Outset

Lawyers often avoid this topic in the beginning, or have only a cursory discussion of what electronic discovery may be necessary or reasonable. Then, when problems arise over alleged deleted emails, missing attachments, the proper document custodian, which party will bear the costs associated with imaging hard drives, etc., the court is left to sort through the mess and attempt to create an equitable plan going forward.

Issues such as the location of ESI, its accessibility, the parties’ need for information, whether the parties can agree upon search terms, whether predictive coding is necessary, and who bears the cost of converting ESI into a useable format are topics that should be discussed in the beginning. However painful those discussions may be initially, they will be more so in the middle of case progression and with court involvement.

Prepare Proposed Orders with Content and that Comply with the Court’s Rules

  • If the judge asks for a proposed order, submit a proposed order that frames the issues, states the court’s findings, and explains the reasoning behind those findings. A proposed order stating, e.g., “The court finds in favor of the plaintiff/defendant” helps no one.
  • Make sure your proposed orders are consistent with the court rules. For example, a proposed protective order that contemplates submitting sealed documents to the court in an envelope marked “confidential,” along with returning of all such filings once the case is over, makes no sense in a court that accepts all filings electronically.

Comply with Ethical Rules and Use Common Sense When Contacting Chambers

If you need to contact the judge’s chambers about a substantive issue, all parties (including any pro se parties) must be included in the discussion or copied on the e-mail or letter. Absent the consent of all other counsel or parties, attempting to speak with a judicial clerk about substantive issues in a case without all parties included in the communication is an unethical ex parte communication.

When contacting the court on a ministerial issue (e.g., the scheduled time of a hearing), have all of the identifying information about your case—especially the case number—handy. From the court’s perspective, finding a court file based on only the name of a party can be difficult. Providing the court with the case number allows for an expeditious response to your question.

Generally speaking, do not call chambers to ask when you will receive a ruling on your motion. The answer to your question is this: The court will get to it in its normal course of business (whenever that is).

Often, it is not only a judge who will be looking over your work, but also a judicial clerk. Judicial clerks provide another set of eyes to make sure cases are progressing and a just decision is ultimately reached. To provide professional and effective advocacy before the court, be mindful of these tips—provided to you by judicial clerks who have viewed (and reviewed) your work from way behind the bench.

Gabriela Acosta and Bren Chambers are judicial clerks for the U.S. District Court for the District of Nebraska. Caitlin Barnes is a judicial clerk for the District Court of Lancaster County, Nebraska. Caitlin Wain, is a judicial clerk for the Nebraska Court of Appeals. All are members of the Robert Van Pelt AIC in Lincoln, Nebraska. Editorial assistance was provided by Tessie Smith, a judicial clerk for the U.S. District Court for the District of Nebraska.

© 2016 Gabriela Acosta, Caitlin Barnes, Bren Chambers, Caitlin Wain, and Tessie Smith. This article was originally published in the March/April 2016 issue of The Bencher, a bi-monthly publication of the American Inns of Court. This article, in full or in part, may not be copied, reprinted, distributed, or stored electronically in any form without the express written consent of the American Inns of Court.