February 14, 2019

Quality of Lawyering

Martin Rowe

Throughout one’s education teachers endlessly pronounce that there is no such thing as a stupid question.  Is there truly no such thing as a stupid question though? Perhaps asking the judge the same question that your co-counsel just asked minutes before at the end of a seven-hour long pre-trial conference is a stupid question. Although losing an oral argument will undoubtedly happen throughout the career of even the most adept orator, being meticulous and generally attentive can prevent embarrassing and unnecessary gaffes and help to build a reputation as a competent litigator.  Being careless and lazy can destroy that reputation in an instant.           

Perhaps the lawyer who asked that question of a judge whose patience was clearly wearing thin after several hours of listening to oral arguments over motions in limine would have been more embarrassed had his client been attendance.  Although no one wants to look bad in front of a client, one’s reputation as a professional among his or her colleagues is arguably even more important than what the client thinks.  The judge assuredly noticed this carelessness and perhaps some of the other lawyers did as well.  There is now the possibility that co-counsel will not trust this lawyer’s work and may keep him out of the loop because they perceive him as careless. 

That lawyer would have likely been even more embarrassed had he realized that afterwards the judge would have a laugh with his clerks and interns back in chambers at that lawyer’s expense.  Or maybe he would have been more attentive had he known that the judge would label him stupid afterwards for his blatant carelessness.  He would definitely be embarrassed if he knew that his laziness could potentially have a negative effect on his client’s chance of success at trial.  After remarking on the stupidity of the question, the judge explicitly stated that he did not look forward to having this lawyer back in the court room for trial because he feared that this carelessness would permeate throughout the trial. It is not difficult to imagine a scenario in which this lawyer stands up to raise an objection during trial and this objection subsequently leads to sidebar with opposing counsel and the judge.  Both sides do well to argue their case and it truly is a toss-up.  Subconsciously the judge sides with opposing counsel because he simply does not like this attorney now due to the lack of respect given to the tribunal earlier.  Although it is perhaps unfair to make a value judgment about someone based off of one seemingly harmless mistake, humans are cognitive misers and it is much easier to simply lump people into one of two black and white categories: good lawyers and bad lawyers.

The gravity of this easily preventable mistake becomes even more evident when the stakes of the litigation are given full context.  The trial concerns a criminal prosecution of three bankers, all three of which face the prospect of spending time behind bars.  Representing a person who is seeking to secure their freedom is arguably the most important assignment a lawyer can be given.  Indeed, criminal defense work is not for the faint of heart.  If the law is not on the lawyer’s side and the client is legitimately guilty then no one would fault the lawyer for losing at trial.  However, potentially alienating the judge because the lawyer couldn’t be asked to pay attention for five more minutes is an easily preventable mistake that would ensure that the client continues to have the opportunity to attain the best possible outcome.     

Though this attorney likely left the conference that day without even realizing that he may have jeopardized his client’s case by virtue of his laziness, perhaps a young attorney on the other side of the case went home feeling a sense of pride for his performance.  Both sides were tasked with arguing some very complex evidence issues that dealt with expert testimony on complicated economic theory.  One relatively young attorney for the government stood out the most that day because of his poise and attentiveness.  While some of the defense lawyers, all likely counsel or partners at well-known New York firms, struggled to make the judge understand these complex arguments, this young lawyer was able put his arguments in succinct and understandable terms so that even a judicial extern was able to follow them.  It was clear that this young attorney took being in federal court in front of an Article III judge very seriously and prepared accordingly.  His preparation and awareness of the gravity of the situation may pay dividends for him at trial because the judge specifically remarked that he thought this young lawyer had done a wonderful job and was looking forward to having him back for trial in a few weeks.

Martin Rowe