When Mark Herrmann posts at Above the Law, I read. No, not because it’s necessarily something entirely novel and deep, though his posts usually contain at least one piece that strikes at a level that few of us think about. No, it’s because Mark’s posts simply and elegantly state fundamentals about the practice of law about which we need constant reminders. He’s done it again.
It’s very hard to take personal responsibility for everything that you touch. But it’s the only way to build credibility and a reputation. If it comes across your desk, then it’s yours. You have to make it right: “that is all Ye know on earth, and all ye need to know.”
While Mark talks about it in the context of in-house counsel, it’s true of everything a lawyer does. Whether you create something, a motion, memorandum or brief, or whether something comes across your desk (or even your table at Starbucks), once it’s touched your hands or passed before your eyes, it has your seal of approval.
If you send it to me, then it meets with your approval. You vouch for it. Period.
It’s a burden. No one suggested that it was easy being a lawyer, responsible for the fortunes of others. No one said you could shrug and disclaim responsibility. Mind you, it doesn’t necessarily require you to do everything yourself. One answer, and sometimes the appropriate answer, is to send a turd back its source and tell its creator that the work is unacceptable. What you cannot do, however, is close your eyes, hold your nose and pass it along. Then it’s your turd.
And what’s this got to do with you? We’re criminal defense lawyers. We don’t pass memos around to corporate clients, or their in-house counsel, for review. Our clients don’t tend to be the best educated, and they’re easily impressed by seeing their name on the front page of a bunch of papers filled with lawyer mumbo-jumbo that means nothing to them. They won’t know whether our work is great or awful, original or spit out of the computer with only a name change. Why bother? Glad you asked.
In criminal defense, one of the worst violations of this concept can be found in pro forma motion practice, both by the defense and prosecution. Change the names and send it off, under the assumption that no one will read it anyway and that, while it’s obligatory to submit motions, they are an official waste of time and energy. Why spend an hour, many hours, researching and writing, only to have a prosecutor submit wholly non-responsive, non-informative papers, and a judge who spends all of seven seconds skimming the first paragraph before ruling?
The reason is one of understanding cause and effect. I’m not merely offended, but outraged, by the cavalier attitude of judges who can’t be bothered to read moving papers, or ignore non-responsive papers from the prosecutor and rule as if criminal prosecutions are a huge joke with a foregone conclusion. If they really believe it’s that easy, that unworthy of their effort, they have no business on the bench. None.
At the same time, it’s become a self-fulfilling prophesy, with defense motions typically unworthy of the time it would take to read them, thus justifying the judge’s quick skim and knee-jerk ruling. Garbage in, garbage out. When defense lawyers submit crap motions, they have no cause to complain about crap responses and crap rulings. While many will argue that it’s not worth the time to write substantive motions that no one will read or seriously consider, the failure to submit motions worth reading are sufficient to justify the court’s refusal to bother.
If it’s ever going to change, it has to start somewhere. Let it start with us, the lawyers, since we have no control over the judges or prosecutors. Write well. Put in the effort in every paper that comes from your hand so that you could show it to anyone with pride. Let it reflect the best, most thoughtful work you’ve ever done, every single time. And having done so, make a stink about it.
When the prosecutor’s response is a change-the-name-form, argue the point to the court. Argue that the defendant is due better than this, a meaningful response with the level of accuracy and detail to which he is statutorily and constitutionally entitled. You may lose the argument, but no one will fall asleep while you’re talking. And if enough lawyers do this, and do it every time, the judges will grow annoyed with their naps being disrupted and start demanding the prosecutors actually demonstrate minimal competence.
And one day, one judge may just take you seriously and read your papers. And may find that your motions are well-conceived, fully researched and (oh my!) meritorious. One day, a judge may utter a word other than denied. One day, you may win the point. This can’t happen if no one bothers to read your papers. And that won’t happen until your papers are worth reading.
Too busy? High volume and no time to spend writing sui generis motions? It’s just another “garden variety” buy and bust? This isn’t an excuse. No one made you take on more work than you can competently handle. You didn’t tell the defendant that you charge low fees, but can’t be bothered to give him the time of day. And don’t think no one notices; your client may not be aware of the fact that you’ve whispered sweet words in his ears to get his pittance of a fee, but will do as little work as possible, produce ten pages of motions that have nothing to do with his case and plead him out at the first opportunity. When you made the choice of taking on more work than you can competently do, and assuming your sales pitch isn’t “low price, low quality,” then you are the at the heart of why judges and prosecutors don’t take the defense seriously.
Own it. Own every thing you do, from your emails to your motions. They reflect who you are. You think you’re a great lawyer, but just don’t have the time, interest or energy to produce excellent work? Then you are deluding yourself. We are no more than the work we produce. Anything that leaves your desk, leaves your hand, is yours. If it’s not excellent, then you’re not. Period.
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Good point. And applicable to other fields as well.
I once saw a motion to suppress that consistently referred to the female defendant using masculine pronouns.
That was about the worst example I’ve seen of the “change the names” form.
form court orders are the absolute worst when it comes to that sort of thing. I guess if the judge doesn’t care enough to check the right boxes on her orders, its no surprise that the attorneys don’t care enough to get their forms right either
Dear ____________:
I just read your blog post about ____________________.
It made me feel _______________, and I now want to ______________ in my ____________________.
Thanks for providing us with such a wonderful explanation of _______________________.
I’ve seen them where they miss a name here and there. I’ve seen them where they include Sandoval motions for people with no priors. But the worst is where they move to suppress and ID where no notice was given, thereby waiving the lack of notice. Point it out and the lawyers feel awful about it. Not as bad as the defendants they burned, however, if the defendants only knew what it meant.
There are few things I enjoy more than making a judge work to deny my motion. I can blame the judges, but I can’t make them care. The only thing I can do is make them believe that I do, and I won’t let it end with a fill in the blanks order.
I got that email too.
As Frank said, definitely food for thought in my line of work as well.
I guess I don’t need counsel often enough in my life to worry too much about this, but I want to read what my attorney is going to submit whenever possible. When I was dealing with a simple civil suit pro se, I spent hours upon hours on my memoranda of law (both for trial and for a subsequent Motion to Amend Judgment). The other party, who was represented by counsel (of questionable competence), couldn’t be bothered to submit anything at all. In both the trial and the motion hearing, the judge indicated that he read my paperwork, plus he actually seemed to know what I had written. Is that unusual?
I won at trial and my motion was (mostly) granted, so I guess my writing was successful. I wouldn’t expect it to take a lawyer so long to write a motion since the lawyer should already know how, but I expect it to be better than what I could write, and if it isn’t, I’m probably going to find a different lawyer.
Maybe I’m too picky, but if I’ve hired a lawyer, it’s important, and I need things done correctly.
As a person not intimately familiar with the US law, why is filing “obligatory motions” necessary? I mean, if you know that the motion will be denied anyway, why make it? If you know that the law is not on your side, and that the motion has no merit, why waste everyone’s time?
So, while I agree with SHG’s point, I’d also like to point out that if one wishes the judge to read motions, they need to be such that they have a chance of succeeding.
Naturally, if there are such motions that might be necessary for a later appeals process, this is different. Still, even in those cases, only such motions should be made that really have a chance of affecting the outcome of a later appeals.
A professional not only recognises the work that is necessary but also avoids causing unnecessary work to himself and to his learned colleagues.
The flaw of your question stems from an erroneous assumption. The motions aren’t necessarily meritless, nor unnecessary. They’re a requisite for certain pretrial hearings, which are routinely granted when applicable. It becomes part of everyone going through the motions (pun intended) without putting in any thought or effort.
Well, there was the case where the motion to ensure that the black defendant would have some black jurors caused the judge to raise an eyebrow and call counsel to the bench to draw their attention to their, er, pigmentationally challenged client.
Lesson learned for those lawyers.
Another reason why there are certain “obligatory motions” is because a lawyer need to preserve the issue for appeal. In the U.S., when you appeal a case, only those issues that were actually raised in the trial court can be considered by an appellate court. Therefore, when you sometimes have a particularly “bad” trial judge who is heavily pro-prosecution, you submit an “obligatory motion” knowing that it will be denied, solely for the purpose of being able to present the same issue to a (hopefully) better appellate judge.
Of course, that only works if you file the right motions and present the proper argument. And remember to change the name of some long-forgotten defendant in paragraph 17 to the one in the caption.
Is “pigmentationally” a word? If not, it should be. At least for challenge purposes.
If it wasn’t a word before, it’s one now. I so declare.
Think of it as a life philosophy.
I will fight a corporation over $10, even though it’s economically a waste of my time. Why? Because that’s who I am.
Wouldn’t you rather be the kind of person who fights rather than cowers or, as people who rationalize cowards say, “Chill out. Let it slide.”
You want lawyers who are not going to simply get along and “move the meat.”
In LA County, that’s the line, “Move the meat.” That means stop fighting and filing motions. Get the “meat” moving through the conveyor belt to the slaughterhouse. Are your clients cows in a meat packing plant?
Tom Wolfe, who studied the NY criminal judicial system, used the phrase “the chow” to describe people processed through NY courts. Whether’s that’s true to form would be for an NY lawyer around during the 80’s.
If you’re not filing “pointless” motions, you’re not a lawyer for the accused. You’re Santa’s little helper. You’re an elf for prosecutors and judges. How cute.
As Aristotle taught: You are what you do. Even if you don’t initially care, if you start fighting everything, and file motions even when they “don’t matter,” then you’re going to become the kind of person who isn’t just going to process chow and meat for prosecutors and judges.
Isn’t that the kind of lawyer you’d want to be?
Oh cool. I get to tell a story. Back in the 80s, when Tom Wolfe was writing Bonfire of the Vanities, he was hanging out in my suite because his buddy, Eddie Hayes, shared the suite. Tom learned all about the court system from Eddie, who had been a Bronx prosecutor, so he used the Bronx DA lingo, which was more colorful, than the Manhattan lingo, which was pretty straight and boring.
No, this added nothing to your comment, but it gave me a chance to tell my story, and really, isn’t that worth it? And besides, your comment did need anything from me anyway.
While Mark’s point about “owning it” is well-taken, in corporate practice there’s a flip side to the problem you describe: The tendency of many big firm attorneys to gold-plate perfectly adequate work.
Rather than focusing on providing counsel that best meets the client’s overall needs (an economic calculation that factors in the cost of counsel and opportunities missed) they will concentrate on drafting “perfect” papers and counseling around every risk. This search for perfection is all too often the enemy of the good.
If you think of it in terms of Herzberg’s hygience-motivator factors, I think Mark deals with the awful to neutral, while your issue deals with the neutral to perfect. While you can’t excuse away bad, there’s a question of cost-benefit for perfection. Of course, if it doesn’t work and a bit better would have done the trick, then the equation changes again. But your point is well taken.
I was so lazy last week that I was going to write a post about SOPA, but yours covered the topic perfectly so I just said “read what that guy wrote.” Does that count?
Really nice post, BTW. It’s always refreshing to read something from someone treats law like it’s a profession, with relentless dedication to clients by producing high quality representation, instead someone who wants to punch the clock, bill their hours, and go home.
To address Josh: that’s why you can get a break sometimes from a small firm. You’ll get the gold plated motion, but they won’t be under the gun to account for 10+ billable hours each day. A lot of times large law firms have to gold plate their motions or they won’t meet their billable quota.
Good point on Josh’s point. Not thinking like a biglaw guy, it never occurs to me to take 2 hours to do a 1 hour job, or to fill 10 hours a day no matter what.
That’s the problem with large law firms. Associates and junior partners have to bill for 8-10 hours in a day, every day, even if the work isn’t there. If they don’t, they’re out of a job.
That’s when you start seeing 20 page motions to compel useless discovery, unnecessary sur-replies, and fights over requests to obtain documents that are over 20 years old and almost certainly irrelevant.
While the lawyering is usually high quality, it’s also unnecessary.
I’m surprised that big companies are complicit in this. I bet they could get more reasonable representation by using smaller law firms who would be willing to do what’s in their best interest instead of meeting their billable hour criteria each year.
Hell, they might even get someone who is committed to seeing them win instead of just billing the file.
I think billable pressure is only part of it; there’s also a certain perfection mentality – maybe a “hyper lawyerliness” – that infects the thinking of a lot of these lawyers. I’ve encountered it in-house as well, in large legal departments.
But your point is well taken. I’ve typically gotten the most business-focused counsel when dealing with solos/small firm lawyers and those who weren’t getting paid by the hour.
I’m pretty sure that Mark had a post making the same point, that perfection is the enemy of good. The irony may be that in a world with no apparent limit on cost, “perfection” can get quite expensive and unwieldly, and yet may be neither perfection nor good.
As if this thread needs more…”own it” being the theme, the defendant needs to own his management of his defense counsel. He can not afford to be justice blind, deaf, and dumb. Unless he has an IQ of 64, he needs to learn what is taking place. Ignorance will get him a new federal zip code & some new white socks.