Statute of Frogs

When the Court issues an order, read it. All the way through. Even* the footnotes.

I wasn’t going to start with this one, but it came up again today, so I felt compelled. I’m amazed when it becomes clear that lawyers haven’t read orders. In a really long order, I can see how your attention might wander and you might miss some nuance, but this almost always comes up with short ones that do simple things like set deadlines or tell parties what issues to address in their briefs. If something about the order is unclear, call the Court and ask. Not only does failing to comply put you in the undesirable position of asking the Court’s forgiveness, but they might say no. And then you’re just stuck. So, even if they’re not compelling (and goodness knows some of the ones I’ve drafted have been pretty dull), read them carefully.

[*] Or perhaps especially.

A good brief is one that makes it easy for the judge — or, more likely, the clerk — to write the opinion you want.

This job has given me plenty of opportunity to look at good briefs and bad briefs.[*] Many of these practice tips will be about the differences between them. But to start, we need some basic standard for evaluating a brief.

The purpose of a brief is, of course, to convince the court to take some action. Judges and clerks, like everyone else, are prone to following the path of least resistance. So if one side has done all the research and can show a clear path through the jurisprudence that leads to its preferred result, that side is at an advantage. This is especially true when the issue is complicated or when the subtleties of the court’s opinion matter to your case.

[*] Unfortunately, there have been far more bad ones than good ones.

Don’t assert clearly meritless positions, particularly early in your case.

This should be obvious, I suppose, but that’s true of most of these. But I’ve had several cases that were defined by clearly bogus motions to dismiss. From then on, the attorney is remembered as “the guy who made crazy argument X.” It’s sort of akin to the boy who cried wolf: once you’ve made some laughable claim, the Court looks at all your future claims more closely than it otherwise would.

The many abstention doctrines provide lots of opportunities for this sort of thing. Most of them are ridiculously obscure and known by the name of the single case in which the Supreme Court decided abstention was necessary for a particular reason. The odds that they apply to your case are — well — vanishingly small.

It’s not as though any of these motions are going to get granted. So it gains you nothing (except, of course, fees) and — believe me — the judge and the clerk remember.

No matter how meritorious it is, don’t proceed as if the motion has been granted until it has.

This one came up again this week, so it’s clearly meant to be the next in the series. This happens most often with motions to extend the schedule. In the most egregious case I’ve seen, a lawyer faxed in a request to extend a deadline that was set for the next week and then immediately left for vacation for two weeks. But often we get motions for extension and it’s obvious that the parties assume it will be granted. It has been known to happen that judges will deny such motions out of spite.

In general, I think judges (even more than the rest of us) want to think that the result was their idea. Any time you put a judge in a position where he or she has no choice, it’s likely to end badly. It’s much more effective to leave the judge thinking that the result you want is the fair one rather than that he or she has been forced into it.

Whenever you file a substantial motion or brief, send a courtesy copy to the judge’s chambers.

It’s not difficult. You have to send copies to opposing counsel anyway. Just add one for the judge. Maybe in some courthouses, the routing of paper filings to judges’ chambers is remarkably efficient. But probably not. That means that, when someone wants to start work on your motion, he or she has to track down copies of the filings. Make it easy for them by sending a copy directly to chambers. It can only help get you on the judge’s (or clerk’s) good side.