Friday, January 07, 2011

How not to carry on in court

One of the more popular posts on this blog, at least in terms of search-engine directed traffic, is from 2007, How to argue a motion -- Part One. I've never quite gotten around to Part Two. Perhaps this is why I'm still without a book contract. Anyway, if you were to go back and look at the post, please remember it was written in 2007 -- before Mr. Obama was elected President. In other words, Clarence Darrow is now only the third most famous lawyer to come out of Illinois....

The courtroom was crowded. Every available seat, including those in the jury box, were filled by lawyers with business on this morning's 9:00am call. Other lawyers were standing, unable to find a seat, and the courtroom deputy sheriff (in Cook County we never say 'bailiff' for some reason) was busy shooing standees to positions as close to the walls as possible.

The judge came out right at 9:00, happy, carefree, overflowing with the milk of human kindness. He took one look at the mass of humanity in the courtroom and the milk curdled.

He knew there were a lot of status hearings scheduled; he'd added more cases than usual to the day's call every day this week because he was catching up after a recent family vacation. But, for some reason, the courtroom was especially packed today. He didn't know why. He did know he was about to find out.
Different judges have different ways of handling crowded rooms. Some will go through the cases in the order scheduled no matter what, but others will ask for agreed orders to step up first.

Our fictitious courtroom is imagined to be a contract calendar room in the Cook County Law Division, but any civil court hearing a variety of matters might have a status call like this one. There are all sorts of reasons why parties might have an agreed order at such a hearing: They may have just settled the case or -- more likely -- discovery is progressing but 30 or 60 more days are needed to get the deposition of one recently ill or out-of-town witness. Maybe the briefing on a motion has been completed and the parties just need a hearing date.
As soon as the learned judge asked for agreed orders to step up, a line began to form in front of the bench.

One of these jostling into line was Amy Attitude, a bright, but impatient, young lawyer. She hadn't actually seen her opponent in court yet, and she was all too aware that her opponent had noticed up a motion to compel for this morning because Amy had yet to answer the written discovery requests he'd served three months ago. On the other hand, Amy agreed with herself that it would be best if she could get in and out of there quickly, particularly because there was lots of other stuff she hadn't done sitting on the cluttered desk back in her office.
Lesson 1: Agreements are between two people or among more than two people. If you are in agreement with only yourself, you do not have an agreed order and shouldn't be in this line. If you aren't in agreement with yourself you may need psychotropic medication. That is a topic beyond the scope of this morning's discussion.
Amy was still fourth or fifth in line when her opponent came into the courtroom and spotted her.

"Why are you in this line?" Gary Green hissed, sotto voce so as not to attract the ire of the courtroom deputy. "We have no agreement."

"How about 28 days to comply with all written discovery and a compliance date shortly after?"
In Cook County, at least, this would be an appropriate response, at least where there's been no prior court-ordered deadline that has already slipped by. If he had more experience, Gary would have known that this would be the likely outcome of his motion no matter how ardently he argued the injustice of it all before the learned trial judge. But Gary was very green.
"No way. Seven days or we wait for the judge."

"Seven days? How about 14?" Amy hadn't actually looked at this discovery, despite the length of time since it had been served, and she didn't know whether it was possible to get responses thrown together in 14 days, but even with all the people in line in front of the bench, the crowds on the sides and back of the room did not seem to have thinned appreciably.

"Seven," insisted Gary.

"If we wait for the judge," pleaded Amy, "we might be here for seven days."


Amy was going to try and protest again, but the deputy sheriff was swooping in. Reluctantly, she got out of line. She tried to find standing room on one side of the room; Mr. Green withdrew to the other side.

The agreed orders concluded, the court started running through the regular order.

Amy's case was the sixth case called. The courtroom was still packed as Amy stepped up. Mr. Green reached the bench first and made a show of pulling out a legal pad chock full of impassioned arguments and pertinent citations as to why sanctions should be entered against Amy and her client on account of Amy's failure to answer discovery.

Amy tried the preemptive strike: "Judge, we're here for status on discovery. I still owe written discovery to Mr. Green here --"

"Counsel!" interjected Mr. Green. "I have a motion --"
Amy's opening gambit was not a bad one. Admit that you owe discovery, get the 28 day order, and get out. The words "28 days to comply" were in fact midway between the judge's cerebellum and tongue when Mr. Green interrupted. But this is an essay about how not to carry on in court. Thus, Amy's response:
"Mr. Green! Please do not interrupt me --"

"Interrupt? Interrupt?" sputtered Mr. Green. "I noticed my motion up two weeks ago --"

"All I'm trying to do is --"

"You're trying to prevent me from getting the sanctions against you that you so richly deserve!"

Did you ever notice that judges in Cook County don't have gavels? This may be an unfair question, particularly if you've never been to Cook County, but it is a fact that judges here don't typically have gavels in the courtroom. Our learned trial judge now lamented this fact. If he had a gavel with him, he could have clobbered both Mr. Green and Ms. Attitude with same. He tried raising his voice instead. "Counsels!" he shouted.
Lesson 2: Address all remarks in front of the bench to the bench. Judges just hate to be ignored.

Therefore, instead of saying 'You are a big, fat doodyhead' to opposing counsel, say 'Your Honor, my opponent is a big, fat doodyhead.' It will get you in less trouble. At least slightly less.
Mr. Green and Ms. Attitude looked up at the judge, surprised, perhaps, to remember he was there.

"I think I have the picture," the judge began. He said this only because he did have the picture. This was a situation he encountered every day, often several times an hour. His eyebrows shot up, therefore, when Mr. Green interrupted.
Lesson 3: Do not interrupt the learned trial judge. Ever. It's his or her courtroom -- and you're just practicing there. I might also submit a Lesson 3A: If you must interrupt the judge, or if you accidentally do so in a moment of unrestrained exuberance, don't disagree with the judge on top of everything else. Mr. Green, naturally, can not be expected to follow this sage advice.
"No, Your Honor, I don't think you do have the picture here. Counsel is not just late in responding. She's very late. And she hasn't responded at all. As the Illinois Supreme Court has said on many occasions, Judge, its rules are not aspirational. They are not suggestions. They have the force of law. Bright v. Dicke," -- Green spelled out 'Dicke,' something that might have been helpful for the court reporter -- if there had been one -- "that's 166 Illinois Second 204 at page" -- he looked down at his notes -- "210. Yes, page 210. And Supreme Court Rule 213(d) says answers must be served in 28 days. That has the force of law, Your Honor. But we have had no answers in three months."

It occurred to Mr. Green that he should have brought a handkerchief. This would have been a dramatic moment to wipe the sweat from his brow.

The learned trial judge had watched this performance with mouth agape. "Are you quite finished?" he asked, red-faced and struggling for control.

There is only one sane answer to such a question. But this is an essay about how not to behave in court. Naturally, therefore, Mr. Green answered, "No, Judge. There's the issue of sanctions."

At this moment, Ms. Attitude should have affected the attitude of a statue. Matters had now degenerated to the point where, if Amy would only keep her mouth shut, the only possible sanction that would be entered that morning would be against Mr. Green. But, as I've already mentioned --

"Judge, there's been no compliance with Rule 201(k)."
Oh, for crying out loud. Now she's interrupting me! The response would have been a good one: Rule 201(k) requires that parties consult on discovery disputes before bringing their disagreements to court. However, the timing of the response could not have been worse. The learned trial judge, when he'd gotten back to Ms. Attitude and asked for a response, would have been pleased to seize on this point. But just at this moment a number flashed in the judge's brain. That number was neither 201 nor 213; it was, rather, the number of years until his pension was fully vested. And from his vantage point, he could see the exasperated faces of all the attorneys waiting for their cases to be called.
"I tell you what we're going to do. You two need to consult as required by the rules. I need to take care of this courtroom full of lawyers. We will pass your case until the end of the call. I have a bar meeting at lunchtime, but I can miss that. I will let you talk as long as you want then. But, for now, step out in the hall and confer. Miss Clerk, call the next case."
This actually happened to me once, probably 25 years ago or so. Opposing counsel and I were not nearly as bad as Ms. Attitude and Mr. Green in today's little drama, but we did talk over each other and failed to address the court. The judge told us to go sit in the jury box until the end of the call and then he'd let us go on for as long as we wanted to.

I don't remember who leaned over first -- I'd like to think I leaned over toward my opponent -- but, eventually, after we'd sat there awhile, smoldering, one of us leaned over to the other and said, "I guess we've been held after school, eh?" Whoever said it, the ice was broken and we quickly and quietly worked out our differences. We still had a while to wait for the end of the call -- and we were smart enough to know we'd darn well better.

When the case was recalled, we both stepped up and announced that we'd reached an accord. "I thought you might," said the learned trial judge. I haven't had a case against that other lawyer since -- there are a lot of lawyers in Cook County -- but I still see him from time to time. We always say hello.
Please note: Reading today's essay does NOT qualify for CLE credit in any of the 50 states or Washington D.C.


Lawfrog said...

LOL! I love this and have seen it play out in the courts of Harris County, TX many, many times. It's incredible how young lawyers feel they can be righteous and indignant in front of the judge. There really ought to be a class in law school about how to behave in court and with opposing counsel, especially in light of this article I read today, discussing the sanctions for two attorneys in Florida who felt the need to insult each other via e-mail. Ridiculous behavior and sad on so many levels:

Shelby said...

This is great.