Five Habits of Thoroughly Annoying Lawyers
by Craig Eley
I just finished reading an article entitled "The Seven Deadly Judges," by a lawyer named Randall H. Warner, who is from Arizona. At least, he was an Arizona lawyer at the time the article was published. Since then, he has probably found it expedient to move to some other state. But don’t bother looking for him — he probably has changed his name.
The lawyer formerly known as Warner described seven types of "deadly" judges. As a fairly newly minted judge myself, I carefully read his article to see if I fit any of the descriptions. Guess what? I didn’t (at least not in my estimation). I won’t go into the descriptions themselves,
Naturally, the article about types of judges made me think about types of lawyers I have seen in court, both as a judge and as opposing counsel. Judges encounter lawyers, at least professionally, in a number of different ways. There are trials, of course, during which much of the attorney’s focus is on witnesses and (unless it is a trial to the court) the jury. During a motions hearing, on the other hand, the lawyer is vying with his opponent for a favorable ruling from the judge, and thus pays close attention to comments, nuances and even facial tics emanating from the court. Then there are mediations, where the judge has no power to rule, but works to persuade the parties to reach agreement. Therefore the skills, tactics and preparation required of the advocate vary depending on the litigation arena in which she finds herself.
Below, I offer my take on just a few of the types of attorneys I have encountered.
This attorney comes in dressed like he forgot he had a court appearance on his calendar, and left his jacket, tie and perhaps his belt at home. Generally, only male attorneys are caught being underdressed in court, because there is an expected uniform for males, and it is very apparent when they don’t wear it.
Of course, no judge would say that a ruling might vary depending on the attire of the advocate. But, how a client views her forever-in-blue-jeans, Crocs-shod attorney in a room full of suits bears some consideration. In a mediation, for example, it is frequently important for the client to have confidence in her attorney. If the client looks around the room and sees everyone except her lawyer in a jacket and tie, she might assume that her mouthpiece is outgunned, and this could affect what she is willing to accept or give in a settlement. Many attorneys believe that the client is paying not only for the steak, but for at least a little of the sizzle.
By the way, if you are too young or too sophisticated to know who Li’l Abner was, look it up on the Internet. It’s part of America’s cultural history, and you’ll never win on Jeopardy if you aren’t aware of this kind of essential information.
Now that T-Rex is completed, metro Denver lawyers can no longer count on reading through a file and prepping for a hearing while stopped in a traffic jam on I-25 (at least, not for the next five years or so). Thus, it regrettably now becomes necessary to prepare the day or evening before a hearing, rather than the half-hour before. The good news is that at any given time there almost always is a "Law & Order" rerun on TV, so you can get ready for the next day’s proceeding while being entertained and at the same time perhaps picking up a few useful strategies or pithy phrases to use (if you’re looking for really pithy, try "CSI: Miami").
Some litigators, however, appear not to have prepared at all. They show up in court barely knowing their client’s name. This is not to be confused with showing up in court and simply forgetting your client’s name, which is merely an issue of premature dementia that can afflict anyone at any time. I make this distinction because while I feel that as an attorney I was always prepared, I have to admit that one of my more embarrassing moments as an advocate was when I attempted to introduce my client to the jury and instantly forgot his name. I fumbled through my pleadings and spotted it – Bill (not even William, of course, it had to be Bill) Johnson. Of course, the jury thought I was an idiot, and the trial continued downhill from there. In fact, during a recess I thought I spotted my client feverishly searching through the yellow pages for the number of the Metropolitan Lawyer Referral Service.
It is, or certainly should be, disconcerting when opposing counsel demonstrates that he knows more about the facts of your case than you do, especially in front of your client.
If, for example, you are arguing that your client should not be subjected to a defense medical examination, it is helpful to be able to answer this inevitable question from the Court: "What are the plaintiff’s claimed injuries?"
I can’t represent, however, that the unprepared lawyer is always exasperating, at least not to me. Recently, in a mediation, I asked the injured workers’ attorney whether he had made a settlement demand. He replied that a week ago he had made a demand of $90,000. Later in the mediation, when I met privately with the defense attorney, he showed me a letter, dated a week before, in which opposing counsel had demanded $190,000. The defense attorney was thrilled that I apparently had gotten the worker’s attorney to reduce his demand by $100,000 before the mediation even really had gotten started. In reality, it was the worker’s attorney not knowing what was in his own file that enabled the case to be settled quickly, and probably advantageously for the defense.
3. The Law of the West — But Not Westlaw
Shoot from the hip, tell the judge what the law is, but when she asks for authority, just say "There’s a case on that, but I left it back at my office." Well, if there is a case on point, it never has been easier to find. Those of us who remember doing legal research by digging into old digests or trying to figure out what j93SC3786 means in Shepard’s Citations cannot understand why some of today’s lawyers won’t take a few minutes, get online, find the case and with the press of a button zip it to the printer (no more standing over a hot photocopy machine, breaking the spines of reporters while trying to copy a decision). The Colorado Bar Association even provides a free online legal research service, Casemaker, which all members can access. Yet, it appears there are those attorneys who just can’t be bothered to do even basic research.
One of the major jobs of an attorney, I was taught, is to convince the judge that the law is what you say it is. Should I just take your word for it?
One of my most memorable "how not to win cases and influence judges" moments was a scene I witnessed 20 years ago while waiting for my hearing. As Dave Barry would say, I am not making this up!
Judge: "Do you have any authority for that?"
Lawyer: "Authority? Well, sure, there’s the Geil decision."
Judge: "Do you have a copy I can read?"
Judge: "Do have a citation to it?"
Lawyer: "Not with me."
Judge: "Well, can you tell me what it stands for?"
Lawyer: "You’re the judge! You’re supposed to know what it stands for!"
4. The Stonewaller
Here’s a lawyer you see all the time. Why? Because she is a habitual stonewaller. She won’t divulge anything, respond to any discovery, or even agree to a deposition date without a court order. In fact, even scheduling a hearing to drag her before a judge for not agreeing to the scheduling of a deposition is a Herculean task.
The game plan of The Stonewaller is to make dealing with her so tedious that opposing counsel eventually gives up. This works just frequently enough that The Stonewaller’s behavior is reinforced by positive results, and so it becomes her standard operating procedure. The problem for The Stonewaller’s clients is that when opposing counsel does stand up to her, and unrelentingly seeks discovery and remedies for her intransigence, it ends up costing her client unnecessary attorney fees for all of The Stonewaller’s discovery related court appearances. This, of course, does not bother The Stonewaller.
The Stonewaller becomes known for not agreeing to even the smallest professional courtesy. Then, when The Stonewaller’s Aunt Mabel in Maine suffers a fall and suddenly requires her only niece’s presence, good luck getting an extension of time for responding to motions, filing discovery responses, and the myriad time-sensitive details that make up a lawyer’s practice. To be a Stonewaller, you better never need a favor.
Again, I am not making this up. A lawyer filed a motion with me for a one-day extension of time to file a responsive pleading. He had known 10 days in advance that he would have a time-crunch and in his motion stated that he had asked opposing counsel for one extra day. Opposing counsel reportedly responded that he could not possibly agree to such an extension without clearing it with his client, and he did not know when he would find the time to contact his client. Consequently, the requesting attorney had to draft and file a motion and a proposed order, court personnel had to log it in and process it, and I had to deal with it.
5. The Intimidator
We all know this guy. A shouting, table-pounding blusterer. He knows better than to use the threat of criminal litigation to gain an advantage, so he constantly threatens additional civil litigation. You cannot get through a deposition with this fellow without calling a judge four times. In hearings, he delights in taking little digs at the other side. For example, he never points out that opposing counsel has made a "misrepresentation," but instead accuses the other attorney of "a blatant, out-and-out lie that should offend the dignity of this court!" He thinks it’s cute to habitually mispronounce opposing counsel’s name, as if he was getting "gotcha" points on some imaginary scoreboard.
Does belittling the other side and boorish behavior endear The Intimidator to a judge? It doesn’t matter to The Intimidator. If the judge admonishes him too often for his taste, he claims prejudice and files for recusal.
Alas, there are more special types of lawyers than there is room here to describe them. We could all come up with many more — The Whiner, The Procrastinator, The Aristocrat, The Slacker, The Sniper, The Prima Donna (and Prima Don), etc. With the possible exception of Li’l Abner, no gender has a monopoly on any of the types I have described.
If you have a favorite lawyer-type that you don’t mind sharing, write it up and send it to The Docket. If we get enough, we’ll run a "Reader’s Choice" follow-up article. You even can try describing your least-beloved judge-type — there’s always a chance I’ll be on vacation and it will slip into print.