The Inns of Court movement has been mentioned in these pages. Two of the more detailed posts are Critical Lessons from a Bar Seminar (2016) and Risks for Attorneys (2019). There are various other mentions of Inn events, the comradery, collegiality, and professionalism that are so endemic to the organizations. Inns have been called "the last, best, hope for this profession" (it was said at a meeting, but attribution escapes my best efforts; it sounds like something former Florida Bar President Henry Coxe would have said).
On February 17, 2021, the Pensacola American Inn of Court met in a live setting. This Inn, under the leadership of Judge Elizabeth Timothy, has defied the odds in 2020-21 with live meetings (supplemented with Zoom alternatives for those who wish it), and fantastic social activities. Judge Timothy has been innovative (outdoor venues), inspirational (reminding of the virtues of practice, and the honor of Inn membership), and persistent. The member's attendance has been notable and illustrates a desire to gather and interact. At this particular meeting, Circuit Judge Ross Goodman's pupilage group presented video vignettes on the poor behavior of both lawyers and parties. It was enlightening.
In preparation for the program, Judge Goodman surveyed judges around the state as regards their "pet peeves" ("frequent subject of complaint"). A lamentable side-note, Judge Goodman will soon retire from the Circuit bench, a huge loss to both bench and the community. In the time I have known him, I have found him to be a jurist and educator, patient, scholarly, and cordial. This small corner of the state has been fortunate for his long service.
The "peeves" list was complimented at the meeting by various Inn members. Some praised their personal practice areas, noting their own close-knit community of practitioners and infrequent experience with professionalism challenges. Judges rose to the podium to comment briefly upon their own "peeves." The conversation at the social that followed returned to the "peeves" and to the practice. The topic was timely, engaging, and productive.
Indeed, it is encouraging to hear all of this. That there is practice of law without the described shortcomings is encouraging. That the shortcomings are similarly experienced and lamented by a variety of judges is encouraging. More encouraging was when the First Circuit's Florida Bar Board of Governors member was called to espouse the perceptions of the Bar regarding professionalism; there is seemingly a growing belief that the practice of law requires more scrutiny and that the Supreme Court is increasingly focused upon disciplining persistent poor behavior.
There are a variety of perceptions as to the cause of unprofessional behavior. There is a near-universal acceptance of the perception that professionalism in the law is diminished or diminishing. And, it is encouraging to hear from good lawyers that they lament that, strive against that, and promote professionalism in both community and court. But, the list of "peeves" would not be so long if the earnest effort was universal. It is fair to say that the legal profession (not "business"), has challenges, champions, and hope.
With the permission of Judge Goodman, I reprint below the "peeves" list. I encourage two behaviors. First, for lawyers, ask yourself whether this describes you. No, not in your best light, on your best day, while rested, and unhurried. Does one of these describe you when harried, tired, short-noticed, or otherwise challenged? How do you react appropriately and adequately when challenged? Will you print this list and share it with others in your firm, community, or practice area?
Second, for judges, ask yourself if this behavior is occurring in your tribunal. Are you addressing it? Or, do you perceive a tidal wave crashing over you and an inability to begin to confront the problem(s)? If you do nothing but accept unprofessional behavior can the profession ever improve? Is there any chance to confront the challenges without losing impartiality? Are you doing what you can to communicate with counsel and clients regarding appropriate practice and process? Will you print this list to share with attorneys who practice before you?
My thanks to Judge Goodman and his pupilage group, particularly Philip Bates. Also of particular note were the comments of Judge Elizabeth Timothy, Board of Governors Member Jeremy Branning, and attorney Brent Bradley. In the discussion, I perceive commiseration, professionalism, and hope. Perhaps there is room for a similar discussion in an Inn of Court, hearing room, or similar near you? Whether one agrees with any particular "peeve," might we nonetheless find value in discussing the perceptions?
(the following is all quoted verbatim from the provided list and is not the work of the author).
JUDGES' PET PEEVES
Compiled by Hon. Ross M. Goodman
- Submission of multiple pages of the same document, especially medical records.
- Submission of unnecessary records.
- Incorrect case citations.
- Excessive objections especially on points that don't matter.
- Not reviewing depositions submitted into evidence to be able to withdraw objections that should be withdrawn either because they don't amount to anything or, if granted, would be detrimental to the client's position.
- Expecting the judge to clean up attorney mistakes by order when the attorney should have filed the proper documents.
- Not knowing where in the record is all the important evidence.
- Trying to hide the truth of what's really going on in a case.
- Exhibits e-filed with some pages upside down.
- Exhibits that are so poorly scanned they are illegible.
- Cell phones ringing during hearings: Attorneys should make sure their cell phones along with the cell phones of parties and witnesses are turned off.
- Attorneys testing the boundaries of professionalism. Nobody wants to lose their case as a trial lawyer. And in the zealousness to win, sometimes attorneys (and hopefully mostly unintentionally) want to "hide the ball."
- Failing to respond adequately to a request to produce.
- To delay any response to request to produce.
- Not coordinating discovery depositions between the attorneys' offices.
- Arguing with unfavorable witnesses in deposition or in live testimony.
- Failing to timely respond to the order of a tribunal.
- Showing "attitude" to opposing counsel or witnesses during a trial proceeding.
- Failure to timely file documentary evidence in trial briefs.
- Not notifying the Judge's office of resolution in a timely fashion so that other litigants can use the time.
- Failure to streamline evidence for trial, i.e., cumbersome and cumulative exhibits.
- Needless motions filed just for billing purposes.
- The filing of a Motion to Dismiss requesting Dismissal of the entire Petition when the body of the motion only identifies a problem with one of the benefits requested.
- Lawyers talking over one another to the judge.
- Lawyers directing their arguments to one another and not the bench.
- Lawyers not specifically stating what they are asking for in their motions.
- Lawyers not adequately proofreading pleadings for typos, bad case cites, etc., before uploading.
- We do so much by telephone these days, and attorneys frequently do not call in timely (or call in at all). It is ironic that when people have to travel and appear live, they are almost always on time; however, when all they have to do is call in from their office/home they just cannot seem to do it timely.
- Exaggeration in briefs and memos. Attorneys should understate and over deliver.
- Lawyers should always cite to the record or the appropriate authority.
- Younger lawyers, when dealing with older judges, should be respectful, but not patronizing.
- Attorneys who ignore the docket and show up to discuss cases that are not on the docket or cases that are scheduled at a later time. They say things like, "I know my case isn't on the docket but I wanted to discuss, or I know my case isn't scheduled until 1:30 but I need to go to Santa Rosa or my client is going to plea so I was hoping you would proceed now rather than the scheduled time." Attorneys should make it to court as scheduled and the docket, which is the Judge's schedule (particularly now that staggering is such a big issue), is equally if not more important.
- Even though social media, texts, and emails are now a critical part of society, lawyers need to understand that filing a motion is still the proper method to make a request of the Court.
- Lawyers who use the court's time to do things that they should have done before court. For example, one judge reports that he/she had a Zoom hearing where the lawyer had never spoken to the witness, a state trooper, and wanted the Judge to allow him to speak to the officer on Zoom during the hearing time prior to his testimony which would have tied up the judge's Zoom courtroom, left everyone else waiting, and made the court hearing run longer than scheduled putting the judge behind in other hearings.
- Defense counsel should avoid using court time to speak to their clients about plea offers. That is to be expected when there is a new offer relayed at the last minute, but it should not be the normal "MO" of an attorney to wait until court to discuss an offer than has been in hand. The judge reports that he/she has had lawyers call their case in court and then begin the discuss of the offer for the first time on the record.
- When an attorney has an objection to how something is being conducted, the attorney should also propose a SOLUTION to the problem of which they complain.
- Incoherent writings, which includes "stream of consciousness" motions obviously dictated to a voice recognition software and then filed without proofing or correction. They are often incomprehensible. The lawyer seeks relief, takes the time to bill their client for a motion, and accomplishes nothing in the process because of the failure to do a competent job.
- Failure or refusal of counsel to speak with each other. Many of our rules require that attorneys meet and confer in good faith regarding disputes before a motion is filed. Despite that, there are way too many motions in which such communication is not apparent or even represented to have occurred. One of the greatest threats to professionalism is the failure to simply speak to each other.
- Scoffing at a judge asking for legal authority on an issue, and justifying the disdain by referencing that "It has always been done this way." It implies that the attorney: (1) has a complete lack of respect for the judge, (2) is not confident in their position, or (3) the attorney is not proficient at legal research. All three implications undermine what might otherwise be a strong position.
- Objecting to a judge's ultimate ruling at the conclusion of a hearing. First, objections are evidentiary, and it shows that the attorney is inexperienced or not very bright. Second, even if the attorney states they "Oppose" instead of "Object" to the ultimate ruling, it is, at best, sophomoric grandstanding. If the attorney did a good job arguing their client's position, then the judge knows that the judge's ruling is opposed by the losing party. Furthermore, the record reflects that the attorney's client opposes the relief granted by the judge. A pointless "Objection" shows that the attorney is foolish, impish, or both.
- Attempting to unilaterally cancel a hearing that a judge sets by Court order without prior approval of the judge.
- Showing up an hour late to a hearing, with no advance notice, and expecting the judge to hear your client's case. Even worse, getting offended when the judge refuses to hear the matter, and instead sets a new hearing date and time.
- Arguing with a judge on a point of law when a judge does not rule in your client's favor.
- Overuse of the "Emergency" motion or petition to get something that is not an emergency brought before a judge sooner. Like the boy who cried wolf, it takes only a few misuses of "Emergency" before a Judge no longer takes the attorney seriously.
- Ex-parte communications with Judicial Assistants.
- Failing to call to the Court's attention that a misstatement is made. Attorneys do not realize that they gain credibility with a judge when they voluntarily correct themselves in a hearing if they have misstated a fact or a point of law. The attorneys gain even more credibility if the self-correction is on a dispositive issue. Why win the battle, when you can win the war? The judge will likely trust the candid attorney, as the judge knows the attorney will not lie to him/her.
- Cutting a judge off repeatedly. The occasional gaff is understood, but repeatedly cutting the judge off shows a lack of respect and a lack of common courtesy.
- Lack of humility. The best attorneys approach each hearing or trial as a job interview, and besides being overprepared, they will charm the judge or jury with a humble, but confident style. This separates the great attorneys from the good ones. Hard work, intelligence, and ethical practices will make an attorney successful. Humble charm in the courtroom turns successful attorneys into great attorneys.
- Acting impatient when a judge allows the opposing attorney or party to make a lengthy argument that is patently irrelevant to the matter before the court. Often, when a judge reaches the point in a hearing when he/she realizes that they are going to rule against a party, then they make sure to allow the losing attorney, and sometimes even the party, to make all the arguments they feel the Judge needs to hear. They will do this so the party can leave the hearing knowing that the judge heard everything they felt they needed to say.
- Ignoring a judge's question. If the Judge starts a hearing off by asking a pointed question on a very specific issue, the worst thing an attorney can do is try and tip toe around answering the question.
- Notice of Hearing with misspellings. My form notice I send to attorneys has for the title "Notice of Hearing on (title of motion and date filed)". Guess what the title of a recent notice read? I think attorneys are having their staff sign these through the portal. Definitely increased since the portal started.
- I will announce pretty much verbatim what I want my reports to include. If it's an all-day case, 1 usually schedule an announcement a few days later. I go from notes I prepare and may speak for 45 minutes. Because their staff will be doing the typing, I always tell the attorney they can record on their phone because they will not be able to keep up otherwise. Many say "I'll take notes" and their proposed reports are junk. The funniest thing that happens about once a year is I'll say, "The Wife has a gross monthly income of $3,500: Oh, go back up where I talked about the Husband's income, and put in that his 2019 bonus is not considered in his future income as future bonuses are speculative." The submitted report will have the exact language quoted above.
- Failure to state the basis for any objection after instructions to do so. An objection without a stated ground can be overruled and further review would likely be precluded.
- Charging $1500 for a contempt motion on $500 of unpaid child support. First, I know many attorneys won't open a file for less, but they need to know just because they charged their client that much even if fees are awarded it going to be for a couple of hours. Better practice would be to tell client they have the option to bring pro se.
- Having two attorneys on a complex legal issue and not getting any case law.
- If it's a case for sole parental responsibility and/or restricted timesharing, tee it up. I will have an all-day hearing with allegations of danger to a child and then the party advancing those facts will suggest every other weekend and half the school breaks to the bad actor.
- Attorney against a pro se. Attorney will make proper objections which are sustained. Attorney will then ask his or her witness, "What did your cousin tell you that the child told her boyfriend?" Bit of an exaggeration, but not much.
- Arguments between attorneys on some discovery or pretrial stipulation. If you don't trust the other attorney, put it in a letter or an email. I m not getting into it otherwise.
- Not knowing the rule that requires the client, the outgoing, and the incoming attorney to sign the motion for substitution of counsel.
- Not doing a certificate of service to the client on a motion to withdraw and/or not serving the client the notice of hearing to withdraw.
- Not knowing the answer to: "So counsel, what do I have to find to rule for you here today, what are the buzz words?"
- Setting too little time for a motion and then expecting to keep arguing past the scheduled time.
- Not working with opposing counsel in scheduling hearings. That is, the attorney is always available for matters the attorney wants to schedule, but rarely available for matters to be scheduled by opposing counsel.
- Staying in fantasyland by thinking that we do not notice that you have an open schedule when you want to schedule a hearing on your motion, but are booked up for months when you are the non-movant upon being requested to coordinate a hearing.
- Having copies of relevant cases or exhibits for the judge but not for opposing counsel, or worse, not having any copies.
- Failure to proofread pleadings and motions.
- Trying to argue a case from another DCA when there is a binding First DCA opinion directly on point.
- Unnecessary discovery disputes which could have been worked out if the attorneys were reasonable.
- Unnecessary litigiousness. Not everything has to be a fight. Get to the core issues of disagreement and don't fight over the extraneous stuff just to generate "billables."
- Asking for too many continuances because the attorney has taken on too much work to properly represent the particular client.
- Lawyers who do not practice Zoom with the clients before hearings, so that the first 10 minutes are wasted while we teach the mechanics of using the technology.
- Waiting until a few hours before the hearing to file a decent response that gives the judge no time to consider the response before the hearing.
- Not being prepared enough to know the exhibit you intend to use with the Witness, having some familiarity with the exhibits, and taking time to ensure opposing counsel has the same documents.
- Interruptions which are usually caused by listening with the intent to respond, rather than to understand.
- One judge remembered a hearing where he/she began going through plea colloquy with the defendant, the defendant's attorney went and sat down. The Judge felt bad for the defendant, standing there alone. It definitely caused consternation.
- Lack of candor with the tribunal.
- Not providing the Judge with pertinent case law when the legal issue involves public policy considerations.
- Not disclosing expert witnesses, for example, an IME physician, until the 30-day discovery deadline. Gamesmanship/Ambush.
Appellate Court
- Arguing too many issues. A typical appeal shouldn't have ten claims of error by the trial court. Pick your best claims, and remember the impact of the harmless error standard.
- Answer briefs unnecessarily restating the same facts as the initial brief, changing the order of argument from the initial brief, or not responding to argument.
- At oral argument, not responding to a question asked by a judge or saying you'll get to that later.
- At oral argument, not being familiar with the record or saying you didn't represent the party at trial.
- Not focusing on the standard of review and preservation of error.
- Being late without letting the court know (no one can find you instead of you calling us to let us know).
- Not being dressed professionally (attorneys in sweaters, tennis shoes, loose ties).
- Chewing gum.
- Not knowing your client's name.
- Answers like "yea."
- Blaming secretaries/paralegals for mistakes.
