There is an exchange between lawyers in The Rainmaker (1997). The movie is full of interesting quotes and overall provides an indictment of lawyers. The quote that sticks with me is this exchange:
"Rudy Baylor : I'm curious.Leo F. Drummond : About what?Rudy Baylor : I'm just wonderin'... do you even remember when you first sold out?"
That line returned to me recently when I was doing some audit work in preparation for the OJCC annual report that will be published yet again this fall. The thread I followed led me from a final order to some pleadings that had been filed. I was frankly stunned by the quality of some of those documents, and not in a good way. Frankly, I suspect that no one had proofread them, not even the most cursory or complacent review before filing.
It made me wonder, at what point after law school does a lawyer become so lackadaisical about the practice of law that simple spelling and punctuation errors become unworthy of attention or correction? My journey through these pleadings included word choice mistakes (they're, there, their), punctuation errors (sometimes missing completely), and spelling erorrs (sic). And I wondered, why?
Law school is a challenging endeavor emotionally, intellectually, practically, and financially. It is a journey that many will aspire to, some will undertake, and frankly too many will likely complete. I recently learned that some law school professors have retreated from their emphasis on writing by substituting multiple-choice examinations for the classical essay examination or written paper. When I inquired about that, I was told that grading is much easier with multiple choice. Well, if it is easier, I guess that is good. Perhaps that conveys an important lesson for the law students - "do what is easiest."
Another quote from the Rainmaker is
"Rudy Baylor: Every lawyer, at least once in every case, feels himself crossing a line that he doesn't really mean to cross. . . it just happens . . . And if you cross it enough times it disappears forever. And then you're nothin but another lawyer joke. Just another shark in the dirty water."
I hope that is not true as to ethics or professionalism, which seems to be Mr. Grisham's connotation or intent in that context. But, I am similarly wondering if that progression is what has happened to drafting and writing? Does each lawyer at one point in some case fail to proofread? If we fail to proofread "enough times," does the practice and habit just "disappear forever?" Does the avoidance of proficiency and assiduity once lead to an encore, followed by an encore, and so on and so on?
How many poorly drafted pleadings does one file before it becomes commonplace and habit? It is possible that these documents are being provided to the lawyer's clients, as well as being filed with the judge? Perhaps those clients do not read or care? I had a client years ago to whom I would send minutely detailed and specific correspondence that concluded with recommendations. He would habitually call me upon receipt, having scanned only the ultimate recommendations, and ask "why should we do that?" Because he was the client, and the customer is always right, I never suggested to him that reading the whole letter would help him understand. Instead, I just verbalized the situation and facts set forth in the initial pages of the letter, to explain (again) those recommendations.
Does the client's propensity to read and ask questions have any effect on the lawyer's desire to draft concisely, completely, and effectively? Or, is the art of writing merely fading into the distant past, soon to join such anachronistic and dated skills as cursive writing, and mix-tape editing? Perhaps there is no value perceived in effective writing.
I find myself at this stage thinking of Ron Popiel who used to tag his infomercials with "but wait, there's more." And that is because there is more. Whether the lawyers or clients find the written word alluring, it has become the standard of progress in litigation. Of course, the written brief has long been the heart of appellate practice. An effective brief, well-written, concise, and clear is the only path to appellate success. This is because oral argument can be requested, but is not a right. The ability to effectively and efficiently explain one's contention in a brief is critical to appellate practice.
That paradigm began to seep into trial work years ago. The federal courts led the way by eschewing live hearings on motions. The trend led to detailed and specific motions that either included or were accompanied by legal arguments written to persuade a decision in one's favor. In the twenty-first century, the Florida OJCC adopted that paradigm and hearings on motions are infrequent (in most districts that follow the procedural rules).
The Chapter 60Q-6 Rules of Procedure for Workers' Compensation Adjudications are clear on motion hearings:
"The judge shall not hold hearings on motions except in exceptional circumstances and for good cause shown in the motion or response."
I have written on that repeatedly, to little consequence. If a party wishes a hearing, they have to (1) ask for it, and (2) justify it. But, there is some population of attorneys that choose to do neither. They sometimes complain after an order is then entered according to the rule; some call the judge's staff to argue about why they are not allowed to simply schedule a hearing. Possibly such habits abound from the "good old days," and possibly some attorneys simply cannot abide this hearing-less paradigm. A verbal argument, after all, is easier than effective drafting.
The point is, that the ability to accurately, clearly, concisely, and effectively draft a motion is simply critical to success in litigation. Possibly lawyers have been deprived of an educational environment that fostered and developed the use of the written word. Perhaps they have been lulled into complacency by the employment of paraprofessionals. Or, there is the chance that they have simply "crossed a line" of not caring about their pleadings "enough times (that) it disappears forever." Maybe they just no longer care whether their writing is professional, complete, and persuasive? The volume and pace of litigation perhaps require compromise and it is the drafting that suffers?
The path to success as a lawyer is likely in words. An old idiom holds:
"If a thing is worth doing, it's worth doing well."
In that vein, if a motion is worth opposing (when counsel calls to ask if you object) then it is worth filing a response to, Rule 60Q6.115(4). If it is not worth filing a response, then why are you opposing it? And. put yourself in the judge's position of being informed by the motion that you "object," but having absolutely no idea why you do so. Judges are smart people, but how would a lawyer expect to prevail when their response to a well-drafted motion is merely "no?" How does a judge find the argument "no" persuasive?
And yet, this is a trend. Lawyers file motions, and opposing parties object. They object without explanation at all, or sometimes with single-word legalities that epitomize vagueness and ambiguity ("irrelevant," "duplicative," "prejudicial"). It is difficult to conceive how they hope to prevail upon their brevity and ambivalence. But, some of them are quick to invest their time after the order is issued.
They then file a detailed motion for rehearing, raising new and substantive objections, essentially saying: "I doubted the need to respond, to explain my position, to cite the law, but now that I failed through inaction I would like to restart the process in hopes of erasing the effect of my indolence." Even in that setting, it is rare to receive either explanation for the failure to initially actively engage in the process and file that motion response. But, rehearing under Rule 60Q6.122 is not to raise new arguments, it is limited in scope and effect. Thus, the sounder practice is to raise those arguments initially, in the motion or response or risk losing the chance to raise them at all.
They then file a detailed motion for rehearing, raising new and substantive objections, essentially saying: "I doubted the need to respond, to explain my position, to cite the law, but now that I failed through inaction I would like to restart the process in hopes of erasing the effect of my indolence." Even in that setting, it is rare to receive either explanation for the failure to initially actively engage in the process and file that motion response. But, rehearing under Rule 60Q6.122 is not to raise new arguments, it is limited in scope and effect. Thus, the sounder practice is to raise those arguments initially, in the motion or response or risk losing the chance to raise them at all.
Rudy Baylor might ask: "do you even remember when you first -"
- "started allowing staff to do your drafting?"
- "quit proofreading pleadings you sign?"
- "became complacent instead of zealous?"
- "forgot that holding a client's life in your hands matters?"
At the end of the day, the ability to effectively communicate in writing is critical. The willingness to do so by motion or response (brief, memorandum, you name it) remains fundamental to this practice. The need to be diligent and focused is critical to your client, and thus to you. It bears your consideration and attention.
