Most state bar rules focus attention on the concept of candor towards the tribunal. It is a concept included in the rules of ethics, which are studied extensively in preparation for law school graduation and the "ethics bar exam," a/k/a the Multistate Professional Responsibilities Examination. Unfortunately, in the trial practice, it is a subject too soon forgotten, or too easily overlooked or ignored. The duty of candor is in Rule 4-1.3 of the Rules Regulating The Florida Bar.
While the main focus, or at least perception, of Rule 4-3.3 is telling the truth ("A lawyer shall not knowingly: make a false statement of fact or law to a tribunal"), there is an added requirement regarding correction. When a misstatement is made, similarly, a "lawyer shall not" "fail to correct a false statement of material fact or law previously made to the tribunal." When a mistake is made, own it, correct it, and move on.
It is critical that attorneys remember and understand that the duty of candor thus goes beyond the avoidance of misstatements. It is simple to remember one must not tell lies, but I find it infrequent that lawyers tell lies. The more difficult challenge is the simple misstatement, and more difficult still is the representation by omission.
Often, adjudicators receive pleas for relief, whether by motion or less appropriate avenues (letters, emails, phone calls, etc.). You see, parties are quick to seek relief or to resist someone else receiving it. That is the purpose of adjudicators, and the role of advocates is appropriately to seek her/his client's best interest. However, there seems to be a growing tendency in these seek and resist efforts to avoid legal research, grammar-checking, and thoroughness; seemingly, sometimes, at all costs.
It is the moving party's obligation to perform three critical functions:
(1) Identify the relief sought sought. What does the party want, why is it entitled, how should the adjudicator effectuate that outcome? Be concise, be clear, be complete. (Three C’s).
(2) Provide legal authority that supports the movant's plea for relief, or the respondent's resistance. Is there is a statute, rule, or decision which supports the outcome you seek? If so, cite it (better still, provide a copy of it). If there are hundreds of supportive cases, keep them, cite them perhaps, but provide one.
(3) When no authority definitively supports your position, simply say so. There is no point in telling the judge that "all the case law supports this," or the "the case law on on this is uncontradicted" if that is inaccurate. Either your opponent or the judge is likely to look at the law, and discover the truth.
Remember, the last ditch alternative to strong authority is generally the “public policy“ argument. Don’t expect judges to be oblivious to this fact. In the absence of authority, there’s always the chance your public policy argument will prevail on either side of the argument. However, the odds of prevailing decrease markedly if the judge must wade through multiple pages of irrelevant nonsense, diatribe, and hyperbole prior to your admission that no on-point authority exists. If it is not there, say so upfront. Own it. Then make your best argument.
An old proverb says dazzle them with brilliance, and if that fails baffle them with something else (paraphrasing). While that is a catchy colloquialism, it does not ring true. By the time you have attempted bafflement for multiple pages, it is unlikely your credibility will sustain a public policy argument in the end. I have known many judges over the decades, and you might fool one periodically. However, the odds are against you in this regard because the vast majority are sharp, focused, and resourceful; they are going to catch any such attempt and it will not work in your favor.
Returning to the failure of so many to cite or provide authority in their plea for relief, note that the rule above also addresses the instance in which authority or precedential law might be left out of a trial presentation, or a motion. The rule says a "lawyer shall not" "fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel." How would a lawyer know what the controlling authority on a question is without some research, at least in terms of checking the currency of what may be currently understood (with a Shepard's or similar check of the case law).
My old friend Horace Middlemier* once told me "You cannot violate that rule if you never do any research, that way you never know anything and cannot be accused of hiding it." That practitioner's rule of blissful, or even purposeful, ignorance does not seem to comport with the intent of the rule. However, additionally, some lawyers have recently told me that their clients do not pay for legal research anymore. They expect attorneys to simply know all of the law and they allow research or updating (Shepard's or similar) only in specific instances and with express permission.
It may be impractical to know all of the law and to cite it effectively in such a circumstance. If you are placing such constraints on your lawyer, know that you are tying one hand behind her/his back in the best of circumstances, and you are setting them up for an embarrassing omission, unintentional misstatement, and all the credibility damage that comes with it. Oh, and her/his credibility and effectiveness may well impact your case, cause, argument and outcome. Likely better to allow a little leeway on the research constraint and let your lawyer do a complete and competent job.
Brevity might also be a challenge. All lawyers seemingly enjoy speaking. However, some lawyers tell me that they get negative client feedback when they invest an hour in producing a motion or memo and yet produce three pages. For such an investment, some perceive that a higher page count should result. Show this article to your clients. 45 minutes of careful and exhaustive research followed by 15 minutes of typing a concise and powerful two-page motion is far more persuasive than two minutes of research and 45 minutes of typing 15 pages of fill and bluster. Nonsensical meandering rarely persuades. Bigger, you see, is not always better. Sometimes bigger is merely bigger.
It is also important to remember that before filing a request for relief (motion, Rule 60Q6.115(1)) one should communicate with opposing parties or counsel. The epitome of professionalism in the practice of law is polite collegiality. There is nothing to even suggest that you must admire or befriend any lawyer against whom you practice. However, there is great value in a two-minute telephone conversation regarding a dispute. Crystallize your thoughts. Solicit your opponent's thoughts. Narrow the focus of your argument, and structure it succinctly. This avoids wasting the judge's time; trust me, she/he will appreciate it.
Cordial relations with opposing counsel and parties is extremely powerful in other regards. I have presided over thousands of hearings, and in excess of 700 trials. I have watched brilliant orators, expert tacticians, and fantastic authors. And yet, their strengths can be unraveled by nerves, temper, and lack of preparedness. I have wondered at some instances of under-preparedness periodically. I am told that some clients are unwilling to pay for preparation; and, I am told that some high-volume practice paradigms simply make such preparation difficult. That is a shame on the surface, and the more I think about it a distinct disservice to both client and case.
Short-temper, raised voice, shuffled papers, sarcasm, and abruptness have no place in a trial. Those who consistently thrive in the practice of litigation avoid these demonstrations. They proceed with a cool aplomb that is wondrous to behold. Their consistency, persistence, and courtesy are inspiring and effective. They know that the witness will not cave in a la Perry Mason, so they make their point and save the argument for the end. Intimidating a witness might make your point, and assuage your ego, but as likely it will merely engender sympathy elsewhere in the trial room. I once saw an employer come to the aid of the injured worker while watching its own counsel on cross-examination. That was both sympathetic and supported the E/C credibility.
I would suggest that Mr. Middlemier's* proposed course described above is fanciful at best. The better course is to do the research, cite the law in support, and acknowledge/distinguish any such law that is against your position. Willful ignorance is no more professional or appropriate than simply misrepresenting the law. Thus, doing the research is both appropriate and consistent with professional practice within the Rules. When there is a misstatement, correct it. Quickly, efficiently, and honestly. It is required by the rule, and is is the right thing to do.
* Horace Middlemier is a fictional character. Any resemblance or appearance of resemblance to any living person is strictly coincidental and unintended.
