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How To Keep Civil Law, Well . . . Civil
As a “young” lawyer whose practice involves a fair amount of writing, I have been fortunate enough to learn the importance of keeping the practice of civil law just that . . . civil. One thing that I, and undoubtedly some of my fellow young lawyers, have struggled with is striking the right balance between strong client advocacy and a tone that is appropriate for the court. I am not implying that the two are mutually exclusive; rather, I have found that being overly-zealous may not have the same effect on the judge as it does on the client.
Along the same lines, I have learned that Maryland Rule 2-431 is not just a procedural hoop that one must jump through before filing that motion to compel. There indeed was a method behind the madness of the authors of the Maryland Rules. In short, a strongly-worded brief or a premature turn to the court for assistance may look satisfyingly aggressive to the client; however, this approach may actually backfire and distract the court, which ultimately (and obviously) is not in the client’s best interest.
Until recently, I subscribed to the school of thought that it was perfectly appropriate to file a brief containing a litany of adjectives and adverbs. Even worse, I did not just use them – I would underline and bold these words LIKE I WAS YELLING AT THE READER, just in case they missed my point. No one likes to be yelled at, so I have learned.
Luckily, a few months ago, I was in a position to receive feedback regarding my writing from a circuit court judge who had been specially assigned to a case that had lingered on the court’s docket since 2005 (notably, before I had been accepted to law school). The six years that the case was pending were, apparently, long ones for the lawyers and parties as time, rather than healing the disputes, only made them worse. And to top things off, my firm was retained just prior to a motions hearing set to address approximately ten outstanding motions that had accumulated over the previous two years.
During the short time I had been involved with this case, I must admit that I contributed to the backlog facing the Court, having written and filed several motions, including motions for summary judgment and motions to compel and for sanctions that, while warranted, perhaps were not presented in the best light to the Court. Regrettably, I had allowed myself to get sucked into the contentious atmosphere between the parties and lawyers, which was reflected in my writing. This did not go unnoticed by the judge.
At the beginning of the motions hearing, the judge pointed at the pleadings on her bench to emphasize that she was neither impressed with the stack in front of her nor the tone with which many of the filings had been written. Unfortunately, that set the tone for the morning (or, full day, as it turned out). After the judge admonished each lawyer present, she honed in on me because, according to her, I was hopefully “young” enough that I could be “saved.” The judge went through one of my pleadings and picked out several phrases that, when read aloud in the courtroom, suddenly seemed over the top and unnecessary. According to the judge, she too fell victim to a similar writing style when she worked in private practice earlier in her career. In fact, she said she once used the phrase “as a last ditch effort, the other party attempts to argue . . .” in a pleading, the use of which she now regrets. Little did she know, I had used that exact phrase in another motion filed that day. Unfortunately, it was too late to revise the pleading. Luckily, it was in another court to be read by another judge.
My judge went on to explain that, although the bench understands that there is a time and place for such language, it should be limited. Short of those rare occasions, such language and tone paints lawyers as disrespectful, while failing to advance their clients’ cause. In short, a strong argument is more effective than a strongly-worded argument, and the latter, like bitters for your Manhattan, should only be used in small doses. I took her comments to heart, adjusted the tone of my writing, and recently have seen successful results.
Before I had the opportunity to adjust my writing, however, I found myself in front of another judge at a recent motions hearing set to address the parties’ discovery disputes. Luckily, I was not the focus of this judge’s admonishment; instead, she focused on defense counsel, a partner at a well-known Baltimore firm. At the outset of the hearing, the judge explained that it “was because of the acerbic tone of the documents that [she] ultimately determined that [she] needed to get [counsel] in the same room because apparently [we] haven’t been very – often or very much in the same room to address [our] discovery issues. After taking nearly an hour of the court’s time addressing our motions, during which the judge pounded her fist on the bench and advised the partner that she was not impressed with his argument on my motion to compel, the judge ended the hearing with this suggestion: “I am committed to you to address legitimate discovery issues . . . [but] do yourselves a favor and take Rule 2-341 to heart and have a discussion. Sit down and discuss that you need to address the claims that are brought in this case.” I walked out of the courtroom, hoping to never be the recipient of such comments from a judge.
The judge’s suggestion goes beyond common sense. Lawyers could spend an inordinate amount of time getting caught up in an unnecessarily contentious atmosphere. This is an ineffective use of time and distracts counsel from the reason we were retained in the first place: to address the claims brought in the case. Although this will not be successful in every case and I have not filed or argued my last motion to compel, when I file/argue the next one, hopefully I will place my client in a better and more reasonable position in front of the judge based on what I have learned so far. Which is quite simple, though on occasion I have to remind myself – I practice civil law, with more than just some emphasis on the word “civil.”
Amanda M. Schwartzkopf is an associate in the commercial litigation department at Silverman Thompson Slutkin & White, LLC. She finds that rooting for her hometown Buffalo teams make it just as difficult for her to stay civil as practicing law, but she’s trying. If you want to discuss either Buffalo sports or civil litigation, she can be reached at firstname.lastname@example.org.