Judges

On a regular basis, newspapers, TV broadcasts and magazines (not to mention the blogosphere) are convulsed with stories about judges: Should they be activists or strict constructionists? Is their experience sufficiently broad and deep? Have they published enough? These debates, of course, are about Supreme Court Justices and, occasionally, federal appellate justices. Their rulings have the ability to affect the lives of all Americans, so it's extremely important that we determine what the majority of Americans want from these judges -- and then determine whether the individual candidates satisfy those needs.

Many lawyers, however, when they think of judges on a daily basis, aren't thinking of rarefied jurists on high courts. Instead, they are thinking about the judge in their local superior or district court, the one who is managing their case, who listening to their motion (or opposition) in the first instance, who is overseeing their jury selection, who is listening to their witnesses, and who will ultimately return the ruling that, in 98% of all cases, is the one that sticks. It's the day-to-day judges who matter most to so many of us.

I therefore decided to bend my mind to the very personal task of figuring out what I like and don't like in these judges -- the day-to-day guys and gals who give the thumbs up or thumbs down to so much of my work.

Right off the bat, I like judges who treat me courteously. I think many of them would do well to remember the advice my Mom's grandmother (who grew up in a wealthy European home in the 19th Century) passed on to my Mom regarding servants: "Treat them politely, dear. Remember, they can't answer back."

The same is true, of course, for attorneys faces judges in the courtroom. Until attorneys have the ability to hold judges in contempt, all the power in that room rests with the judge. Given that balance of power, there is no reason in the world for a judge to be rude -- yet so many are. This kind of boorish behavior is inexcusable and, aside from creating feelings of contempt for the man or woman in the robe, it also destroys the respect due to the office.

While I like my judges to be courteous, I also like them to be in charge of their courtroom and of the case. Just as judges fail if they're rude or crude in the courtroom, they also fail if they let attorneys run amok. Lawyers and parties waiting patiently for their turn on the docket sheet shouldn't have to listen to hours of pointless waffle from two attorneys who happen to have a personal bone to pick with each other. It's the judge's responsibility to control this behavior. Absent judicial intervention, the lawyers have no incentive to stop fighting, since there is always the possibility that the last uttered argument or insult will do the trick. Only the judge can halt proceedings before they get out of hand.

The judge's ability to stop things before they get crazy isn't just limited to oral argument. As a contract attorney, I get to work lots of different cases, and I get to see lots of different lawyers go toe-to-toe. There are some lawyers who are naturally aggressive and will fight everything to the death. Get two of these personality types opposing each other on a case, and you will find yourself in situation similar to one on which I once worked.

That long-ago dispute was over an unpaid $26,000 bill. Each side in the case incurred over $250,000 in attorney's fees. The case settled after 3 years for $11,000. It goes without saying that many of those attorney's fees resulted from motions, especially discovery motions. It should have been immediately obvious to the judge that the attorneys involved had no sense of proportion and were bound and determined to abuse the judicial system with myriad picayune motions. A wise jurist would have spelled out some rules -- backed with sanctions -- from the git-go. We had no wise jurists. I made a lot of money off the case (insane litigators are a gold mine for contract attorneys), but I had a bad taste in my mouth about the whole thing.

I'd also like to see judges recognize their limitations -- and in this regard I'm very much a strict constructionist. I've never recovered from the moment, more than 15 years ago, when a judge denied my summary judgment motion with these words: "I know he doesn't have a cause of action, but I think there's something there." How wrong could one judge be about his role in the case? Once he determined that the plaintiff didn't have a cause of action, his responsibility ended. Given the clearly applicable law, the judge's opinion was meaningless. And as it happened, it wasn't only meaningless, it was dead wrong. The case went on for another five years and $1.5 million dollars, only to end with a complete victory on just about the same grounds stated in my original motion for summary judgment.

Judges should determine and apply the law, not listen to their gut feelings. Only in that way can our legal system be reliable and affordable. Loose cannon jurists who take sides because they like one party as a matter of principle, or dislike a lawyer because of his personality, and who allow the law to fall before their prejudices, destroy not only individual cases, but chip away at the credibility of our entire legal system. They should be impeached.

What are your opinions about what judges should and should not do?

Citations in footnotes

One of my obsessions is trying to make my briefs as clear as they can possibly be. I believe in the legal arguments I make, and it is important to me that the judge understand those arguments. If my brief is well-organized and elegantly written, I'm certain that the judge will be able to follow my arguments with minimal effort. I may still lose, but I'll at least have lost on the merits, and not because the judge was either exasperated or making wild guesses as to what I said.

One of the tools in my writing arsenal is something I learned from Bryan Garner, who runs LawProse (which I think is the best legal writing seminar provider in America). Garner believes that all case cites should go in footnotes. He claims, rightly, that a string of case cites -- which really amounts to random words and numbers -- interrupts the flow of an argument. Stick them down in a footnote, however, and your argument shines through, unimpeded by random code.

When I pointed out during a seminar that sometimes the case cite information isn't so random, because the Court or the year or even the case name is privotal to the argument, Garner had a simple response: leave that information up in the text.

To give you an idea how this works, let me pull a paragraph from a California Supreme court decision, and then rewrite it with footnotes:

Over the past several decades, California courts analyzing the tort of interference with prospective economic advantage have required such a threshold determination. In Buckaloo v. Johnson (1975) 14 Cal.3d 815, 122 Cal.Rptr. 745, 537 P.2d 865, where we set out the five elements of the intentional form of the tort, we stated that the first element requires “the probability of future economic benefit.” [Footnote omitted.] (Id. at p. 827, italics added, 122 Cal.Rptr. 745, 537 P.2d 865.) Although varying language has been used to express this threshold requirement, the cases generally agree that it must be reasonably probable the prospective economic advantage would have been realized but for defendant's interference. (See Worldwide Commerce, Inc. v. Fruehauf Corp. (1978) 84 Cal.App.3d 803, 811, 149 Cal.Rptr. 42 [“creditor-guarantor relationship was one reasonably expected to be economically advantageous”]; Wilson v. Loew's Inc. (1956) 142 Cal.App.2d 183, 190, 298 P.2d 152, cert. granted (1957) 352 U.S. 980, 77 S.Ct. 381, 1 L.Ed.2d 364, cert. dism. (1958) 355 U.S. 597, 78 S.Ct. 526, 2 L.Ed.2d 519 [“it must appear that such (prospective) contract or relationship would otherwise have been entered into”]; Campbell v. Rayburn (1954) 129 Cal.App.2d 232, 234, 276 P.2d 671 [“facts showing that the plaintiff had any reasonable expectation of economic advantage which would otherwise have accrued”].)

(From: Youst v. Longo (1987) 43 Cal.3d 64, 71 [729 P.2d 728, 733, 233 Cal.Rptr. 294, 298].)

Quick. Tell me what that means!

I don't know about you, but my eyes rolled back into my head when I tried to read that wall of text interspersed with numbers. It is a royal and time-consuming pain to pick out the substantive information dotted throughout that monolithic paragraph. And when you read as many cases as I do in any given day (since my practice is limited to research and writing), those royal pains add up quickly.

Here is the same paragraph rewritten to exclude all case cites. As you can see, it's easier on the eye and easier on the brain:

Over the past several decades, California courts analyzing the tort of interference with prospective economic advantage have required such a threshold determination. In Buckaloo v. Johnson, (Fn1) where we set out the five elements of the intentional form of the tort, we stated that the first element requires “the probability of future economic benefit.” (Fn2) [Footnote omitted.] Although varying language has been used to express this threshold requirement, the cases generally agree that it must be reasonably probable the prospective economic advantage would have been realized but for defendant's interference. (Fn3)

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Fn1: Buckaloo v. Johnson (1975) 14 Cal.3d 815, 122 Cal.Rptr. 745, 537 P.2d 865

Fn2: Id. at p. 827, italics added, 122 Cal.Rptr. 745, 537 P.2d 865.

Fn3: See Worldwide Commerce, Inc. v. Fruehauf Corp. (1978) 84 Cal.App.3d 803, 811, 149 Cal.Rptr. 42 [“creditor-guarantor relationship was one reasonably expected to be economically advantageous”]; Wilson v. Loew's Inc. (1956) 142 Cal.App.2d 183, 190, 298 P.2d 152, cert. granted (1957) 352 U.S. 980, 77 S.Ct. 381, 1 L.Ed.2d 364, cert. dism. (1958) 355 U.S. 597, 78 S.Ct. 526, 2 L.Ed.2d 519 [“it must appear that such (prospective) contract or relationship would otherwise have been entered into”]; Campbell v. Rayburn (1954) 129 Cal.App.2d 232, 234, 276 P.2d 671 [“facts showing that the plaintiff had any reasonable expectation of economic advantage which would otherwise have accrued”].)

I don't know about you, but getting rid of the code (and that is, after all, what case citations are) makes the Court's actual analysis pop out. One can quickly see that this paragraph stands for the principle that, in California, the law has always been that a plaintiff cannot recover for interference with prospective economic advantage, unless he can show that it was reasonably probable that he would, in fact, have achieved that advantage.

Now, if you happen to think the language in Worldwide or Wilson or Campbell is important, you don't have to bury those quotations in the footnote along with the cites. Try this on for size:

Over the past several decades, California courts analyzing the tort of interference with prospective economic advantage have required such a threshold determination. In Buckaloo v. Johnson, (Fn1) where we set out the five elements of the intentional form of the tort, we stated that the first element requires “the probability of future economic benefit.” (Fn2) [Footnote omitted.]

Past decisions have stated this principle in varying ways as, for example, (a) the “creditor-guarantor relationship was one reasonably expected to be economically advantageous;” (Fn3) or (b) “it must appear that such (prospective) contract or relationship would otherwise have been entered into;” (Fn4) or (c) “facts showing that the plaintiff had any reasonable expectation of economic advantage which would otherwise have accrued.” (Fn5) No matter how its stated, its clear that these courts generally agree that it must be reasonably probable the prospective economic advantage would have been realized but for defendant's interference. (Fn3)

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Fn1: Buckaloo v. Johnson (1975) 14 Cal.3d 815, 122 Cal.Rptr. 745, 537 P.2d 865

Fn2: Id. at p. 827, italics added, 122 Cal.Rptr. 745, 537 P.2d 865.

Fn3: Worldwide Commerce, Inc. v. Fruehauf Corp. (1978) 84 Cal.App.3d 803, 811, 149 Cal.Rptr. 42

Fn4: Wilson v. Loew's Inc. (1956) 142 Cal.App.2d 183, 190, 298 P.2d 152, cert. granted (1957) 352 U.S. 980, 77 S.Ct. 381, 1 L.Ed.2d 364, cert. dism. (1958) 355 U.S. 597, 78 S.Ct. 526, 2 L.Ed.2d 519

Fn5: Campbell v. Rayburn (1954) 129 Cal.App.2d 232, 234, 276 P.2d 671 [“facts showing that the plaintiff had any reasonable expectation of economic advantage which would otherwise have accrued”].)

I'll be the first to acknowledge that this last effort isn't as elegant as it could be, but it works for a first pass: it makes every point the California Supreme Court made, only in a way that is much easier on the eye. If I were actually writing a brief, I'd clean it up even more, but I think you're catching my drift without my going to that extra effort.

Although this is a better way to write briefs, be warned that some judges resist it. They've been burned so often by attorneys who hide unpleasant facts or arguments in footnotes (especially footnotes printed in teeny-weeny font), that they are hostile to any footnotes, regardless of the way in which they are used. Garner's rule, however, should quickly sway these judges: if it matters, put it in the brief; if it's just secondary information, put it in the footnotes. Judges will quickly learn that your briefs are easy on the eye and easy on the brain.

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Templates for the home office

When I left my full time job at one of the big firms, I left behind a full time secretary and a word processing department. I wasn't too worried, because I'd always typed up my own briefs. However, I discovered that the problem wasn't the typing, it was the formating. In my law firm days, I'd type in the text, and my secretary would carefully align it to print it up on expensive pre-printed pleading paper. Or the word process department would insert custom-made pleading code at the front of the document and then, ever so carefully, line up all the text.

When I went out on my own, I had to figure out how to do these things myself. It was instantly obvious to me that I was not going to spend money on expensive pre-printed pleading paper. I could often take some from my clients -- it was, after all, their pleadings I was printing -- but that was cumbersome. Also, I hated the waste, since it was very difficult to get the lines to match, and my aesthetic sensibility was deeply offended when they did not.

What I ended up doing in the beginning was copying those custom-made codes from willing clients and applying them to my own documents. It wasn't a great solution because I still had a hard time getting things to line up. Sometimes it would take me an hour (not billed to the client) to get the darn thing to look right. Technology, though, has solved these problems, especially if, like me, you rely primarily on WordPerfect to prepare your pleadings. (Although, sadly, with the passing years more and more of my clients have gone to Word, since it automatically comes with the computers they buy.)

WordPerfect has a wonderful little macro entitled "Pleading." Once you've selected that macro, an easy-to-understand little wizard will walk you through the process. In just one box, it asks how many lines you want on the left and the right, what margins you want, how high the line numbering should go, what the spacing should be, what font, what justification, and what type of page numbering.

Answer all the questions and it automatically generates a perfect pleading page every time. If you stick to the line spacing you selected in the first place (and if you know how to toggle back and forth between single space, for quotations, and double space, as I do), your document will always align perfectly and it will look beautiful.

MS Word, typically, is more difficult. (As I've always said, Word is easy to learn and hard to use.) Some Word versions come with a Wizard that includes pleadings (which you'll find under File -> New), but it's an incredibly rigid device. It forces the user into certain parameters that almost never match my own requirements. To change the margins, the number of lines, the space allocated for the case caption -- these are all incredibly challenging tasks, that suck up enormous amounts of time.

I've actually found it easier simply to go to Word's legal template site and look for a pre-formatted pleading template that suits my particular needs. They're seldom as elegant as anything I would design for myself on WordPerfect, but they get the job done.

I suspect a lot of this sounds very fussy to you, but I think it makes a difference. When the judge sees a beautifully formatted pleading, with the lines matching and the text nicely balanced, he or she thinks (a) this is a quality law firm and (b) this is easy on my eyes. Both of those thoughts, I believe, provide a significant subliminal advantage for the attorney submitting the beautiful brief.