And I dictated this, it occurred to me what a brilliant invention it would be for someone to build a computer program that could actually recognize the words I’m using. Brilliant! The tribulations of dictating are well known and often funny.
There was once a funny commercial that poked fun at voice recognition. Another is currently running in which the voice assistant and a GPS application confuse "the mall" for "Nepal." It is good that we can remain good-natured when tech so often is less than we are promised. Technology is neither perfect nor approaching it.
That fallibility is perhaps what makes it most like us?
Speaking of imperfect, there’s a frequent joke about the current state of legal practice. I wish it were fanciful, rather than descriptive. The hook is: "What is the difference between ignorance and Apathy?" You let that sit for a moment, and then the punchline resonates: "I don’t know and I don’t care." For the next gens, that is "IDK and IDC."
I have been privileged to work with some of the most brilliant minds in the country. I have had chances for interaction, discussion, and debate beyond the dreams of most. Unfortunately, there are periodic encounters with some who should instead swim in the shallow end of the pool. I am not saying they are not as smart as the best, but it is fair to say the quality of their work is not equivalent with the best.
Nonetheless, I’ll get emails about that swipe regarding the shallow end, and perhaps I deserve it. But keep this in mind, I’m not making light of those who have diminished capacity. After all, I am discussing lawyers. These are individuals who possess the intellectual prowess to excel in high school, conquer college, and achieve success over the challenges of law school.
Lawyers have to possess a significant degree of intellect, dedication, and persistence to reach bar membership. The education path is challenging, even today, when we hear of law schools that do not require writing, administer multiple choice tests, and even have classes where grades are not measured with either.
Thus, I am forced in the conclusion that these are not ignorant or intellectually challenged individuals filing nonsensical, error-ridden documents. And therefore, I wonder why they cannot make a point. Why can't they cite a rule, statute, or decision? Why can't they acknowledge the suggestions of their own spell check?
In short, the quality of much that is filed recently is beyond disappointing. The volume of errors is astounding. The nature of the errors is disappointing. A lawyer who cannot distinguish "there," "their," and "they're." An attorney who cannot finish a . The many mispelings.
The successful lawyer is representing the interests of their client. They are striving to resolve disputes in a manner that benefits the client. They have a plan, and there is purpose in each action they undertake. The successful lawyer is purposeful, methodical, articulate, and focused. They know how to use spell check.
Step one with any lawyer action (motion, claim, defense) should be to tell the judge they should do something. If the issue is digging a hole, the lawyers first owes it to the judge to prove that they can dig. What authority does the judge have to dig (this is a great place to cite a statute, rule, or appellate decision). Every claim, defense, or motion should begin with a citation that assures the judge this place is somewhere they are permitted to dig.
Having demonstrated that they can dig here, the lawyer should next tell the judge why they should dig here. That one can does not mean one should. There are many things any human can do, but are they appropriate? Does the timing, location, or audience matter? Of course. The advocate must demonstrate why their sought action is appropriate here, in this case.
The final step is about the moment. Why now? Even if what you advocate is an appropriate step, and this is the right place, is this the right time? What says so? Certainly, this is a question upon which a rule, statute, or prior decision might be informative or even illuminating.
The purpose of a claim is to obtain something. The purpose of a defense is to avoid providing something. The purpose of a motion is to gain judicial involvement in your dispute. The purpose of a response is to resist or restrain that involvement. This is very basic stuff.
Every claim, defense, motion, or response should address these points: Can the judge do this? Why should the judge do this? Why is this the right time to do this?
Unfortunately, many advocates instead focus on only one thing: "what I want." Like Morgan Wallen and Tate McRae (What I want, 2025) "That's what I want, that's what I want." You can repeat that chorus more ad nauseum than those two singing, but it still just describes desire, not persuasiveness. Saying what you want is easy.
The lawyers who just "want," express only that, a visceral or emotional desire. They see something and they desire it. They apply no intellect to the why or how, and simply seek the "it." Their arguments and foundations are vacuous and empty. As a result, they are unpersuasive.
There is nothing wrong, per se, with “I want." Every human has wants. But just wanting is not enough. So what? I want one million dollars, please send it.
The workers' compensation practice is small. Very few are invested in the litigation of workers' compensation claims. Among them are intellectual giants, imaginative icons, and outstanding advocates. That group, however, is small and seemingly shrinking.
Judges across the country convey to me their amused and confused silence when seeming members of the "fail army" prognosticate and participate in the "I want." Their pontifications, musings, and wanderings are not effective. They are disappointing and disaffecting.
The members of the fail army apparently do not see themselves in that light. Their self-perception is of exceptionalism and infinite skill. They achieve accidental success and proclaim their superiority. They fail to see that they prevailed not through exceptional skill or prowess or because they are extraordinary. They succeed because their poor performance was nonetheless some measure above the even less effective effort(s) of their opponent.
The fact is that winning any contest does not mean you are the best athlete in that sport. It means merely that you are better than your opponent in that particular game, that day. If you beat me in a foot race, you cannot claim on that sole basis to be "fast," just faster than me.
There is lamentation. Judges see poor performance, incomprehensible pleadings, and unsupported arguments, claims, and defenses. They struggle with the merits of your filings, the absence of citations (rule, statute, cases). They do their own research and struggle with the potential that your bare argument might somehow have merit., unarticulated and vague, but merit.
They issue orders you do not like. Not because your arguments lack merit, but because you chose not to be articulate, thorough, persuasive, and professional.
Do you not know, or simply not care? Are you a professional or a candidate for the "fail army?" Is your reputation of focus, attention, and detail or of confusion, indecision, and indifference?
Be more:
- Can the judge do as you wish (jurisdiction).
- Should the judge do so (why here?).
- Is this the right time (why now?).
The answers are reasonably simple. Take the time to know. Do your research, read rules, statutes, and decisional law. Ignorance is no path to success.
Care about the outcome. If the claim, defense, or motion is worth filing, it is worth doing it right.
The difference between ignorance and ambivalence? Does it really matter whether you failed because you don't know or because you don't care? What matters is that you failed because of either.
