Bench Book Article
Practice Pointers for Effective Lawyeringby Christian W. Clinger
It is often said that law school trains one to think like a lawyer, but not how to practice law. Compare legal training to other professions. When doctors graduate from medical school, they can, at a minimum, perform a physical examination. When dentists graduate from dental school, they can at least scrape some tartar from a tooth. Lawyers, by comparison, upon graduation from law school, are unlikely to actually know how to file a lawsuit, let alone try a case.
As a law clerk for the Third District Court in Salt Lake City, I asked several judges and attorneys what basic practice pointers they would pass on to attorneys, especially young attorneys. This article will present a few practical lessons for effective lawyering, arranged around three general topics: basic protocol, pleadings and motions, and court appearances.
I. Basic Protocol
Common Courtesy to the Court Clerks. Before you ever get to say the time-honored words, "May it please the Court," you will have to ask the court clerks, "May I please file this document?" or "May I please have a court date?" When I first started working for the court, I was shocked by the lack of common courtesy that some attorneys showed towards the court's clerks. Whether the clerks are at the front desk or in court, these individuals carry out essential roles in the administration of justice. The learned lawyer knows the clerks are a valuable resource. Because the clerks literally see hundreds of pleadings and cases, they often know the rules of procedure and the Utah Code of Judicial Administration better than most attorneys. As attorneys, especially young attorneys, we should demonstrate the utmost of courtesy to court staff. A negative reputation around the courthouse is difficult to overcome. I once heard a distinguished attorney remark that, "It is nice to be important, but is more important to be nice."
Respect for the Court. As officers of the court, we have a responsibility to show respect for the judge and the court. Respecting the court is not only common sense, it also part of the Rules of Professional Conduct. Third District Court Judge Ann Boyden recently taught the importance of respect as set forth in the Preamble to the Rules. The Preamble's fourth paragraph states: "A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials."1
All too often, in today's business casual environment, many attorneys have become relaxed in court protocol. Some examples include: sitting while speaking to the judge; approaching the bench, the jury, or the witness without asking permission; bringing food or drink into the courtroom; not turning off cell phones or pagers while in court; and finally, talking while the judge is speaking. The latter is especially troublesome for two reasons. First, it is just bad manners to talk while someone else is speaking. Second, and more importantly, the court's record becomes confusing, especially when a court reporter is making the record. It is best when only one person speaks at a time. While the court is not per se sacrosanct, we should show proper respect for judges and the legal system we serve.
Punctuality. One additional way to show respect for the court is to be early for court appearances. A lawyer's life is governed by time. We are always under the pressure of deadlines, whether a statute of limitations, time restrictions on motions, or the dreaded billable hour. Nonetheless, a court appearance is one instance where tardiness can be fatal to your cause. Legendary football Coach Vince Lombardi had a remarkably effective method for teaching punctuality. When traveling, the team bus always left exactly on time, and sometimes several minutes early. A rookie quickly learned that if he did not arrive early, he would be left standing alone in the parking lot, having missed the bus and all hope of playing in the game. In some situations, being late for court is like being late for Vince Lombardi's bus. If you arrive late, you may find yourself standing alone in the courtroom, only to later discover that the judge has stricken your matter from the calendar for non-appearance, or worse, entered default for failure to appear. In sum, don't just be punctual, arrive early.
II. Pleadings and Motions
Form of Pleadings. Legal writing is one law school subject where there is room for improvement. Lawyers should be trained how to draft pleadings, and the proper format for such documents. The Utah Rules of Civil Procedure dictate the form of pleadings. The rule states:
All pleadings and other papers filed with the court, except printed documents or other exhibits, shall be typewritten, printed or photocopied in black type on good, white, unglazed paper of letter size (8 1/2" x 11"), with a top margin of not less than 2 inches above any typed material, a left-hand margin of not less than 1 inch, a right-hand margin of not less than one-half inch, and a bottom margin of not less than one-half inch. All typing or printing shall be clearly legible, shall be double-spaced, except for matters customarily single-spaced or indented, and shall not be smaller than pica size. Typing or printing shall appear on one side of the page only.2
While it may seem insignificant to some, the top two inch margin is important. If the top margin is insufficient, then the first few sentences will get hole-punched, or, when placed in a thick file, the first few sentences will be buried under other pleadings. This makes it difficult for the judge to read the pleading, thus reducing the effectiveness of your skillful legal writing. Also, if the pleading is not properly formatted, the clerk of the court, ". . . may require counsel to submit properly prepared papers for nonconforming papers."3
Additionally, all pleadings are to have a signature line on which the person submitting the pleading is to sign in permanent black or blue ink.4 While some attorneys may prefer red, green, purple, or pink ink as a means of self-expression, many judges do not consider the court to be the proper place for such individualism.
Avoid Adoption by Reference. The pleading should contain all relevant information, with limited reference to other pleadings. Rule 10(c) of the Utah Rules of Civil Procedure permits statements to be adopted by reference in a pleading. However, the general consensus among judges is that adoption by reference should be limited, particularly where there is not an attached exhibit or courtesy copy. When writing a pleading, the attorney's number one job is to communicate the relevant facts and law to the judge. When an attorney excessively writes, "incorporated by reference as stated in the complaint" or "see Affidavit" without attaching the referenced document, the attorney is essentially asking the judge and opposing counsel to stop, put the pleading down, and look for the referenced material.
One particular case in my experience demonstrates this principle. This case involved numerous parties in complex commercial litigation, with 32 volumes in the court's file. Counsel had not submitted courtesy copies prior to a summary judgment hearing. As the Judge read the memoranda of points and authorities in support of summary judgment, he noted that there were so many adoptions by reference that there was an obvious need to refer to all the cited pleadings. The Judge and I then went on a wild goose chase hunting for all the referenced pleadings. This was not only a difficult task, but a waste of judicial resources. Neither judges nor their law clerks have the time to engage in playing "hide the issue." The most persuasive legal writing will incorporate all relevant issues, facts, and statements of law within one concise pleading.
Rule 4-501 and Notices to Submit. If the court clerks received a dollar for every time an attorney or assistant called to ask, "Why hasn't the judge ruled on my motion yet?" they could all retire early. The clerk's most common response to the above question is, "Did you file a Rule 4-501 Notice to Submit for Decision?"
Rule 4-501 of the Utah Code of Judicial Administration establishes a uniform procedure for filing motions, memoranda, and other documents as well as a procedure for requesting hearings.5 The Notice to Submit for Decision informs the clerk that the specific motion and memorandum as well as any opposition thereto are complete and ready for a ruling. This past year, Rule 4-501 was amended. Effective April 1, 2001, "The Notice to Submit for Decision shall state the date on which the motion was served, the date the memorandum in opposition, if any, was served, the date the reply memorandum, if any, was served, and whether a hearing has been requested. The notification shall contain a certificate of mailing to all parties. If neither party files a Notice to Submit, the matter will not be submitted for decision."6
There is one additional caveat in regard to hearings following a Notice to Submit for Decision. The Court can either deny or grant the request for a hearing. If the court grants the request, courtesy copies of the motions, the memoranda, the supporting authorities, and all supporting documents must be delivered to the judge at least two working days before the date of the hearing.7
III. Court Appearances
Know Your Judge. Prior to meeting with the assigned judge for the case, try to learn his or her practice preferences. The Litigation Section of the Utah State Bar has surveyed many state judges regarding their courtroom protocol. Their research is ongoing, and is updated periodically. Their survey results are posted at the Litigation Section bench books.8 If the assigned judge has not responded to the survey, the next best resource is the judge's clerk. I recommend learning how the judge conducts scheduling conferences, pretrial conferences, oral arguments, voir dire, jury instructions, and marking of exhibits. It is wise to take a few minutes to learn the judge's preferences so you do not waste the court's time or do anything to distract from your case.
Pretrial Conferences. Prior to the pretrial conference, the attorneys should meet to discuss the case one more time to see if the case can be resolved. All too often the attorneys wait until they get to the pretrial conference to try to settle out in the hall. When the court calls the case, the bailiff has to go find the attorneys. The usual response from the attorneys is, "Just give us five more minutes." As we all know, five minutes quickly turns into thirty minutes. Since most pretrial conferences are set fifteen minutes apart or on a general roll call, if you are not prepared you will delay the court's calendar.
The apt attorney knows (or at least presumes) that judges keep their calendars current. Thus, in regard to pretrial conferences, be prepared to try the case. When you come to a pretrial conference, you are essentially telling the judge that all discovery is complete, and the case is ready to be tried. In one pretrial conference an attorney was very adamant about getting the earliest possible trial date. Yet, when the judge responded, "We can start tomorrow morning," you could almost hear his jaw hit the floor. The attorney was not ready to try the case that soon. Contrary to a common misconception, many judges keep their calendars so current that they can start a trial within a short period of time. In sum, bring your calendar to court, and be prepared to try the case when you come to a pretrial conference.
Trial. When it comes time for trial, regardless of whether it is a bench trial or jury trial, the skilled attorney does everything within his or her power to make the case run smoothly. For example, when submitting a trial memorandum, the memorandum is concise and includes a copy of all cited authorities. Opening statements are brief and set forth a road map for the trial. Witnesses are ready when called. When exhibits are offered, the attorney has a courtesy copy for the judge. While many of these principles seem obvious, they are not always followed. As attorneys, we are charged with the responsibility of advocating for our client, as well as assuring that the trial proceeds in a timely manner.
We can be better attorneys by learning proper court protocol. While law school may not have taught us how to practice, following just a few basic principles can transform us into persuasive practitioners and effective officers of the court. And, if you catch me not following my own advice, remind me to reread this article.
1. Utah Sup. Ct. Rules of Professional
Practice, Chapt. 13.
2. Utah.R.Civ.P., Rule 10(d) (emphasis added).
3. Id., Rule 10(f).
4. See Id., Rule 10(e).
5. Rule 4-501 does not apply to proceedings before court commissioners, small claims cases, habeas corpus, or other forms of extraordinary relief.
6. See Utah Code of Judicial Admin., Rule 4-501.
7. See Id., Rule 4-501(E).
8. Judge's Benchbook.