The movie Back to School, starring
Rodney Dangerfield came out in 1986. It essentially deals with the
protagonist's (Dangerfield) decision to attend college to be closer to his less
than enthusiastic son. Professor Terguson is played by the loud and often rude
comedian Sam Kineson. His stand-up routine catch phrase was "say it,"
which he would scream at the audience.
This catch phrase "say it" was
picked up in the movie to great effect. In one scene, Professor Terguson
screams in Dangerfield's face "say it!, say it!" Dangerfield responds
with what he thinks Terguson may want in terms of some historical event, and
Professor Terguson calms down and compliments him on the answer. Dangerfield
turns to his class mates and sarcastically says "Good teacher. He really
seems to care. About what I have no idea."
I have been reminded of the scene
recently with some pleadings. So much in the practice of law could be simpler
if you just "say it." Of course, I am not advocating that someone get
up your face like the comic Profession Turguson. Another of Kineson's catch
phrases can be editorialized thus "I don't condone frustration, but I
understand it." There is frustration on both sides of the pleading
process, I hear it from attorneys and from judges.
Attorneys lament that their motions are
misunderstood, under appreciated, and ultimately unsuccessful. Judges lament
that the motions they receive are rambling, unclear, and insufficient for
making a decision.
Both of these can be solved.
One great example is the motion or
stipulation for attorneys fees. I hear from lawyers when these are denied.
Usually, the conversation begins with some explanation that there has been a
denial and the attorney cannot comprehend why. After looking through the
paperwork, I usually identify a statement that I think might have changed that
outcome.
Believe it or not, there are
instances in which attorneys have sought approval of fees from an injured
worker because they represented the Claimant. I know that sounds ok, and representing
someone is usually why attorneys are paid. But the mere fact of representation
is not necessarily enough to justify payment of a fee under the statutory
construct we work within.
There has to be some action (attorney)
that garners a reaction (payment or provision, that is "obtention of
benefits"). It says so in the statute. When drafting the motion or
stipulation, why not "say it," that is track the statutory language
and simply say this benefit was not provided or was denied, attorney name filed
a petition (wrote a letter, made a phone call, etc.) and the denial was
rescinded and/or the benefit was provided. Then add for effect "the
attorney action (insert) resulted in the provision of (insert benefit) to the
injured worker."
This does not have to make for a long
motion. That can be said in a simple, straightforward and quick manner. This
explains why a fee is due. Sure, it takes longer than simply, "I
represented this person and so a fee is due," but it is also more likely
to provide the judge with sufficient information to make a decision.
Just "SAY IT!"
Another example that occurs somewhat
frequently is the continuance motion. The statutory language is "the
reason for requesting the continuance arises from circumstances beyond the
party's control." I am surprised at how often I see a continuance motion
that does not track or recite that statutory language. Generally, I see these
when an attorney calls me after their motion has been denied. These calls are
often angry and the target of the anger is usually the judge, as in "how
could she/he not grant this?"
Why verbally dance around the point? The
point is that something happened, that something was beyond control, and that
something justifies a continuance. "SAY IT!" Why not just say, "this
(insert event/occurrence) happened, it was beyond the moving party's
control because . . ." This can be simple, clear and short. Hint, if you
cannot articulate how it was beyond your control, there is a good chance the
judge will not be any more able to infer it from the absence of description or
explanation.
When seeking relief, one of my early
mentors taught me, it is helpful to cite the authority that supports the judge
siding with you. Provide the statute or the rule. When citing a rule, it is
helpful to make it the right one. I still see motions (old forms) that cite the
pre-DOAH procedural rules. Those have been revoked by the Court, they are not
applicable, they are a nullity (this has been true for over ten years). What
message are you sending when you cite defunct rules?
After citing the statute or rule, follow
and recite the actual language. State the element "beyond control"
and then state how your situation fits that language. State the action of
counsel and the resulting benefit obtained. There is no need for flowery
legalese, or two-paragraph descriptions. Too much verbiage and large complex
words can confuse and distract more than they help. Keep it simple. Tell the
judge the criteria from the rule or statute and then simply state how your
situation meets it.
When you meander, wander, and ramble,
you frustrate than serve your purpose. When your exposition and enunciation of
justification and illumination are contumacious and extensive they may
dissimulate or dissemble, confuse or confound and one may conclude that you are
prevaricating. Instead, just "SAY IT!"
With any luck, the Judge will do the
same, and you won't find yourself saying "Good judge. She/He really
seems to care. About what I have no idea."
