A Successful Litigant's Bag of Tricks

A Successful Litigant's Bag of Tricks

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I recently met with a member of the faculty at my daughter's law school regarding speaking with her 3L bankruptcy class about starting out in the practice of bankruptcy law. In thinking about that, it occurred to me that what I'd tell the 3Ls is largely what I might tell many young lawyers (and some experienced ones) who appear before me regularly. The repetitive nature of many mistakes I observe almost suggests that some lawyers want to do a second-rate job of getting their client's story before the court. Thus, it occurred to me that perhaps what I ought to do is tell them how to do a really effective second-rate job and thus assure that the judge gives special attention to their appearance.

 

Start with a poorly written pleading. Misspellings, punctuation errors and poor grammar will be important. You will enhance your chances by filing your pleading out-of-time; if you're in a district with more than one place of holding court, filing in the wrong place may also be helpful. This puts opposing counsel immediately off-balance and may result in her filing out-of-time herself. A capstone is to clearly announce your insouciance by adopting a signature that approaches a childish scrawl or a facsimile of that of an inmate at Bedlam. And of course, changing it often gives you some protection from the built-in unfairness of Rule 9011.

Another helpful suggestion is to misspell the judge's name on the pleading. This will assure that the judge pays special attention to the papers you file. Getting the case name or number just slightly wrong wouldn't hurt either. And of course, garbling the spelling of opposing counsel's name or getting her address wrong is frosting on the cake. Also, rather than just listing the names of parties on the caption, why not throw in the names of all those on the service list into the caption as well? If they're on the service list, they must have some litigable interest in the case.

Then there's the obvious misstating of material factual points. This tends to put opposing counsel off-guard—it confuses the judge who reads the papers before the hearing and gives you enormous advantages in confusing the record. A corollary is misstating applicable law. You can do this in a number of ways, such as misstating specific Code or Rule numbers (especially ones that don't exist), deleting key words or misrepresenting the statute or rule's application. For example, in quoting a statute, you might remove a "not" from the quotation and replace it with "..." If opposing counsel calls this to the court's attention or the court questions you, you have the opportunity to further obfuscate the record by arguing that this isn't a misstatement but merely a disagreement as to the import of the quoted statute or rule.

Missed citations or misstatements of case law are always helpful. This can take several forms. First, cite the wrong volume or page number. However, if you include the correct case name and volume, it is too easy for the judge or opposing counsel to find the correct citation. Think about transposing the numbers of the volume. Of course, in an era of easy access to computerized legal research, it is easy to find the correct decision. Therefore, you might consider a slight misspelling of one or both parties to the cited case. Next, think about obfuscating the actual holding or the factual similarity or difference to the case before the court. This gives you the opportunity to tailor a citation to more closely fit (or be distinguished from) your client's case. Another and more sophisticated way to handle this is to switch holdings in any given line of case law. Above all, be sure not to check the citation's history. If by some chance you know the authority has been overruled in whole or in part, criticized or is the minority view, you tip off the court or opposing counsel by revealing the history and this ruins your chance to prevail, at least at the trial level.

Don't overlook the benefit of sentence fragments, either. Being unclear in your pleading or in a brief provides you with an opportunity to explain your argument and further tailor it to opposing counsel's argument or the court's expressed views. Finally, before we leave the pleading or brief stage, consider the helpfulness of always arguing with the intake person at the clerk's office when you file. This invariably will be called to the judge or the judge's law clerk's attention and assures their paying special attention to the papers filed, prior to oral argument.

And, of course, you want to have your pleading or brief hit the judge between her tired eyes. You want it to be so outstanding that on reading it, the judge has the feeling that this may be one of the worst papers she's ever read. If it is a judge who has been on the bench just a short period of time, she'll probably not have had the opportunity to see a large number of papers and thus not have seen a number of remarkable deficiencies in pleadings. Your goal isn't to get the prize from a rookie judge with limited experience, though. Your aim should be to win the prize from a veteran judge who has seen many substandard pleadings or briefs over the years but has never had one that has hit her right between the eyes. Keep in mind what your target is. If you're pressed for time, consider doing your legal research by calling the judge's law clerk. If you then find your legal analysis criticized, you can lay the blame on the clerk. After all, clerks are hired to assist you—not the judge.

In your oral argument, your first goal is to be late for the hearing. You shouldn't be too late as that may cause some concern on the part of opposing counsel and the judge that you've befallen a disaster. Rather, you should be just late enough to be irritating and put the judge off-balance. This gives you the opportunity to try to shift the focus of the judge's irritation onto opposing counsel. After arriving late, don't even consider apologizing to the judge and her staff or to opposing counsel. Showing that you're considerate is an attribute that could quickly weaken the reputation you have so carefully crafted to this point.

Your appearance in court may also assist you. The traditional lawyer's blue suit, white shirt or blouse or other conservative business-like attire won't set you apart from the multitude. Arrive appearing as if you just climbed out of a duck blind and you assure that the judge will give you special attention. You really want to appear in such a way that when you ask the judge to approach the bench, the judge will say something to you like, "You may approach the bench, but please don't touch anything."

Repeated objections to opposing counsel's arguments are also helpful. You must assume judges enjoy the opportunity to show on the record their in-depth knowledge of the Federal Rules of Evidence for a reviewing court. Attempts to stuff additional arguments in the record wholly different than those set forth in your pleadings or briefs are eye-catching and will create a lasting impression on an appellate judge. And, of course, the creative use of initials or acronyms is helpful. Designating one party as ABC, another as ABS and another BIS, etc. gives you the opportunity then to confuse the record and, by doing that, to CYA.

Don't neglect the opportunity to make derogatory remarks about an opposing party or counsel. Some lawyers prefer to merely use snide remarks or cast aspersions about them. It makes no difference whether they're true, but it may cause the court to wonder what kind of a person she's dealing with. Sometimes, however, more direct results can be achieved by unmistakable slurs on opposing counsel's honesty, intellect or the like. You really need to temper the use of that commentary to how your late arrival, appearance and demeanor have affected the judge and opposing counsel up to the point of your presentation.

There are some wrap-up things that I should point out to you. The first is what Dean Nancy Rapoport of the University of Nebraska College of Law refers to as "indulging your client's sleazy instincts." Your client may have some illegal or unethical idea that may get the opposing party or counsel where he or she lives. If called on the carpet about this at a later date, you can argue to the disciplinary counsel that your client lied to you, and of course, you'd never make such an argument had you known the truth. Telling the disciplinary counsel that your sleazy client didn't even pay you your regular hourly rate may help get you additional sympathy. Finally, as a wrap for misspellings, misstatements, incomplete or run-on sentences, failure to timely file or to appear on time—all this can be laid off on your paralegal or secretary. They are not officers of the court and won't be present to defend themselves; hence, they're the logical people to blame. Be sure to tell the court that you'd never engage in such conduct. Handled properly, this is a technique that may result in monumental irritation to the court.

There are a number of other methods to be used in assuring a lack of success in individual instances or in building a reputation that will assure that any pleading with your name on it or your appearance in court will illicit a loud sigh or groan from the bench. Don't believe judges when they say they're busy, overburdened with reading material and grateful for precise, well-reasoned briefs and oral arguments. You don't need to give the least thought to how you'd feel if you were faced with a barrage of ill-prepared lawyers who bicker over trifles, who lie to you and to each other, who ignore their client's needs and blame others for their own mistakes. Keep in mind how enjoyable your work can be. You became a lawyer because you wanted the power to affect other people's lives and the freedom to control your own schedule. Having come this far, having accomplished so much, it certainly wouldn't be a good idea to permit some judge to keep you from your goal. After all, if you're given the luxury of winning, you can surely forego the necessity of doing things properly.



 
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Wednesday, December 1, 1999