PROFESSIONALISM CORNER
PROFESSIONALISM CORNER
Practical Professionalism for Trial Lawyers … in Five Easy Steps ! ( Continued )
PATRICK QUINLAN
5 . “ There Will be Caselaw .” The phrase “ there will be caselaw ” became a promise / threat for my training sessions at the State Attorney ’ s Office . It reflects my effort to emphasize the importance of legal research and writing , even in the trial-intensive world of criminal prosecution . Supporting your position with caselaw not only increases your chances of prevailing in the matter at hand , but it also enhances your credibility with the bench , which will pay long-term dividends . In order to maximize the ethos bump , I offer three practical tips . The first is what I call The Peter Blanc Rule , named after the superb retired trial judge ( and current mediator ). He said that lawyers should provide caselaw to the court , and to opposing counsel , well in advance of a hearing . If you show up at the hearing with previously-undisclosed cases , it signals that you are trying to obtain an advantage by blindsiding your opponent , which is unprofessional . Moreover , as he pointed out , it suggests that you do not really believe in the merits of your legal argument ; if you did , you would proudly send over your cases in advance and invite opposing counsel to “ read ‘ em and weep .” The second tip relates to the duty to disclose adverse precedent . Bar Rule 4-3.3 ( a )( 3 ) requires a lawyer to disclose “ legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to ” the client ’ s position . The terms “ controlling jurisdiction ” and “ directly adverse ” can offer wiggle room for someone looking to avoid disclosure . But do you really want to be in a position of having to tell the judge that you did not discuss a particular appellate opinion because it was only “ indirectly adverse ” to your position ? When in doubt , I suggest the “ d and d ” approach : disclose and distinguish the case . You will gain the respect of your judge . My third tip concerns delivering copies of caselaw . It is a “ mirror image ” rule : opposing counsel should get the same thing , in the same way , as the judge . In the old days , less scrupulous attorneys would
hand-deliver materials to the court and drop opposing counsel ’ s copies in the regular mail . This is unprofessional . It is also unprofessional to provide highlighted copies of caselaw to the judge but not to opposing counsel . Indeed , that practice is arguably unethical , as it is seen by some ( myself included ) as improper ex parte communication with the judge -- telling the court , but not counsel , which parts of an opinion you consider most significant .
Lagniappe : “ It ’ s Not Personal - It ’ s Strictly Business .” I like to provide a bonus thought at my trainings , a sort of thirteenth doughnut in your bag . Or , in this case , a sixth step on the path to professionalism . Here it is : never view your work on a case as a personal contest between yourself and your opposing counsel . You should never say , or even think , “ I kicked his / her a **.” That attitude breeds unprofessionalism . Keep everything strictly on a business level .
I hope that these tips help you practice professionally by day … and sleep well at night .
Article provided by Patrick Quinlan , Training Director , Palm Beach County State Attorney ’ s Office .
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PBCBA BAR BULLETIN 18