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Bench and Bar: What is Each Entitled to Expect From the Other? (PART II)

Part II: What the Bench Expects from Our Bar?

Author: MURRAY I. WEINER

Last month I wrote about what the Bar can and should expect from our Bench.  I received quite a bit of feedback from the Bench and Bar, most of it favorable.  Two comments are worthy of note.  One was from a Denver attorney, and another was from a judge who sits outside the Fourth Judicial District.  As an initial matter, I had no idea that anyone outside of our Bar read The Pikes Peak Lawyer, but I am pleased to hear that others are interested in what we are doing in El Paso and Teller Counties.

My Denver colleague was somewhat surprised with last month's article.  He liked and agreed with what I had written, but nevertheless thought I might have been smart to have published it anonymously.  As I told him, I am at a loss to know how I could have made the President's Column anonymous.  In any event, other than generating some largely positive comments, the article has not been the cause of any repercussions, at least none that I know of. The judges in our District that I interviewed for this month's Column had no problem with what I wrote.

I found the judge's comments more interesting.  In an email, the judge told me that it was a "great article," and that I was "right on the money."  He was disappointed, however, that I had chosen to include an apology in the article's last full paragraph.  That paragraph began: "Those are my thoughts.  Hopefully I have not offended too many people . . . ."  The judge's explanation follows:

The only reason someone would be offended by your words is that he or she has failed to live up to them, and they should be offended therefore.  The law is a high calling, and judges should stand at the apex.  Although we are subject to human frailties, we should consider it our obligation to those we serve to be entitled by our conduct to the title, "Your Honor."

What the Bench Expects from Our Bar?

As an attorney who has practiced in the Fourth Judicial District since 1988, I am in a position to know what attorneys expect from our Bench.  Accordingly, last month's article was based in part on my own experience, as well as comments I received from other practitioners in our Bar.  Although I clerked for a judge 22 years ago, I have never been a judge and am not qualified to state with any certainty what our Bench expects from the Bar.  In light of this, after my last Column was published, I interviewed a number of Fourth Judicial District Judges, asking each what they expect from attorneys who practice in their Court.  In addition, I received email messages from a number of other judges that I did not have time to interview.

From my discussions with the judges I see three recurring themes.  First, the judges want to see the same high level of advocacy that we seek to achieve.  Among other things, each commented on a recent hearing, trial or case where good lawyering made their job easier and more rewarding.  Second, although they provided me with examples of situations where improvement can and should be made, the judges went out of their way to explain to me that they did not want to be perceived as complaining about our Bar or lawyers generally, or our role in the legal system.  They view us in part as their constituency.  The judges with whom I spoke or corresponded appear determined to do their best, and are generally upbeat about our Bar and its performance before them.  Finally, by the nature of their position the judges feel and are isolated from the Bar.  This is a problem and it is significant.  Hopefully, this article will assist in ending some of the isolation.  Having a Bar President next year who happens to be a judge (El Paso County District Judge Kirk Samelson) will also help.

What follows is a summary in my words of what I was told by members of our Bench about their expectations of our Bar.

  1. Counsel will be timely. The first and most obvious expectation of the members of our Bench is that attorneys appearing in our Courts will be timely.  Counsel will appear in Court on time ready to proceed and we will not delay others by our conduct -- especially not jurors who have put their lives on hold to participate in the judicial process.  We will inform the Court and opposing counsel if there is a problem which will make us late or delay the proceedings.  Written filings will be made in a timely manner.  Extensions of time will be sought only if necessary and after discussing the extension with opposing counsel, who will not arbitrarily object to reasonable requests for extensions of time.  No objections to extensions of time will be made for an improper purpose, such as making the job of the attorney requesting the extension more difficult.
  2. Counsel will be prepared. Attorneys appearing in our Courts will be prepared.  We will know the law and the facts of our case, and we will make an organized presentation to the Court or jury.  A number of judges I spoke with echoed the comments in my last article about "winging it." You do a disservice to your client, the Court and yourself when you are not prepared.  We have a relatively small Bar and Bench.  Those attorneys who properly prepare and present their cases to the Court are known for it, and those that do not have a different reputation.  Pleadings need to be on point and tell the Court what it is you want, and why your client's position is supported by law or fact.
  3. Counsel will advocate only for what is reasonably supported by fact and law. A number of the judges commented on the reasonableness of the arguments made by counsel to the Court.  Their point was that they expect us to concede issues that are not supported by the law or the facts.  Instead, it is the expectation of the Bench that counsel will jettison arguments that cannot possibly carry the day, and focus only on what is reasonable and obtainable from the Court.  Stated differently, when you get to the phrase "my fifth best argument is . . .," it is time to stop, since you have long since passed what might be accepted by the Court.  One judge asked me to note that the expectation of reasonableness in oral advocacy applies equally when we submit pleadings to the Court.  As he said, at some point you simply "stop being helpful to the Court." Another judge used the rifle/shotgun analogy.  He urged counsel to be precise stating: "Ask only for what you believe your client is entitled, and give your best reasons to the Court, not every possible reason."
  4. Counsel will be honest with the Court and their opponent. I heard this from everyone.  They all stated that counsel who meet problems with their cases "head-on" fare better than those who do not.  Members of our Bench expect counsel to acknowledge and disclose case law or facts which seemingly interfere with the relief they seek, and to tell the Court why the bad case or facts do not apply or do not otherwise interfere with the relief sought.  There is an expectation of truthfulness in both oral and written statements to the Court and opposing counsel. Our judges expect counsel to talk with their opponent about their case, to comply in good faith with rules which require us to confer before filing certain pleadings or taking other actions, and to report to the Court accurately about our opponent's position or the status of the case or matter.  Further, our judges expect that proposed orders submitted with motions, or orders submitted at the request of the Court, will not go beyond the basic relief requested or what the Court has ordered.
  5. Counsel will advocate for their clients in a professional manner. The judges on our bench are not interested in resolving personal disputes between members of the Bar.  As one judge said, "We are not babysitters.  We have our own children."  A second judge added "It is a pleasure when all I have to do is my job."  Simply put, the judges want to hear about the case -- the merits of the case, and the law.  They do not want to hear about what the other lawyer said or did.  They do not want to hear about any of this in oral argument, at trial or in pleadings.  They would like to avoid reading letters between lawyers which are sometimes attached to pleadings or submitted as exhibits, and they urge the members of our Bar to remember that pleadings, like arguments made in Court, are public and they will be read by others.  One judge said do not "denigrate" other lawyers.  Another said get rid of the "snittyness," and stick to the job at hand.  Every judge I spoke with commented on personal attacks each noting that professional advocacy, without the personal attacks, was most effective in convincing the Court of your client=s position.  I was told by one judge that while he took no pleasure in admonishing counsel, he would not hesitate to do so in situations where one attorney took it upon him or herself to level a personal attack on his or her opponent.
  6. Counsel will be supportive and respectful of the judicial process. The judges on our Bench expect that our Bar will show deference to the Court.  One judge with whom I discussed this in detail was careful to note that the deference and respect was to the position, the role and the function, and not necessarily to the person wearing the robe.  His concern was with the integrity of the judicial and adversary system, and the example the Bar and the Bench set for our clients and the public.  Finally, I sensed an expectation, perhaps not as forcefully expressed as by Judge David Ebel in his Law Day talk, that the Bar will come to the defense of the judiciary and its independence when it is attacked.  Whether overtly expressed or not, from my interviews with our judges, there is no doubt in my mind that members of our Bench feel vulnerable to attacks to which they are not in a position to respond.  They need and are entitled to expect that we, as members of the Bar, will act to protect their independent role in our system.

I have attempted to capture the main points made to me by members of our Bench regarding their expectations of our Bar.  There is a lot more to talk about.  As I said in my last article, I am hopeful that the Bench/Bar articles will encourage a dialogue between the Bench and Bar, and among the Bar, as to what it is we expect from each other.


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Mulliken Weiner Berg & Jolivet P.C.
102 South Tejon Street, Suite 900
Colorado Springs, Colorado, 80903 USA
719.635.8750