Know Your Jurisdiction's Rules
Some lawyers do not know, or are not very familiar with, their jurisdiction's applicable rules. While it may sound ambitious, a yearly (at least) review of your jurisdiction's Rules of Evidence and Civil Procedure will help you in your arguments and pleadings and give you more confidence in your advocacy.
Communications with Your Client
Be sure to adequately communicate with your client before filing something, and, when necessary, have your client sign the pleading, especially when it includes specific allegations. You don't want to be the lawyer misstating "facts" all through a pleading, only to find out later you did not have the entire (or accurate) story. There will sometimes be disagreements between the parties regarding allegations, but be sure to discuss thoroughly before rubber stamping a draft.
You should set and maintain realistic expectations with your client from the beginning. Clients hire attorneys to help them navigate their issues, and making promises or overpromising results will only do a disservice to you and your client. Be sure to keep your clients informed and instruct them on how to help you best present their case; lawyers need to remember that, in a family law case, their client may be their best co-counsel.
Communications with Opposing Counsel
Act as if a judge is a party to each communication with opposing counsel. It does not help your client or your case to be unreasonably difficult. Zealous advocacy does not include deceitful behavior or personal attacks against opposing counsel. On the contrary, this behavior can create unnecessary distractions and potentially affect your client's case. Just recently, an appellate court in California addressed civility in a published opinion, stating "[a]d hominem attacks…signal inappropriate personal embroilment in the dispute, and indicate an inability to engage in the reasoned analysis the courts need and counsel's clients deserve."
A judge must make judgment calls and resolve disputes between parties to a case. A judge should not have to mediate and make judgment calls on unnecessary or personal disputes between attorneys. Vitriol and venom between officers of the court have no place in a courtroom. Judges see immature and unnecessary behavior enough from litigants; they do not want to see this from lawyers.
Timeline
Whenever you are preparing to initiate or respond to an action, create a timeline for easy reference and ensure that you give yourself time to prepare before any deadlines and court settings. This will also help you in court when referencing significant events, and it will demonstrate to your judge that you are prepared. Another good document to have is one that lists all potential witnesses/parties with their current contact information and their relationship to the case.
If your jurisdiction utilizes scheduling orders, review the order(s) frequently and calendar all deadlines and due dates to complete discovery, etc. Review orders setting court appearances as soon as those are available to you and consult your calendar and with your client to identify any conflicts. As soon as a conflict is known, notify the court in a manner acceptable under your jurisdiction’s rules and local practice. If you need an extension or a continuance, ask for it before the last minute, and communicate with opposing counsel before seeking relief from the court to include opposing counsel's position in your request.
Discovery
Discovery is a tool and a friend. While responding to discovery is a source of misery for most attorneys, looking at the process as a tool for success in your client's case is helpful. Knowing your client's financial health and history, for example, is critical to forming the theme of a case and defending against any overreaching claims or allegations. Most friendships start with getting to know someone and can be over a long period or through an immediate connection. Getting to know discovery as a friend starts with reviewing and cataloging the information your client and the other side provide. A good rule of thumb is to review responsive documents within two days of receiving them, whether from your client or an opposing party. Doing so will ensure you are familiar with the discovery requests sent to your client and allow you to identify deficiencies in an opponent's responses and case more efficiently. Creating a log of responsive documents also provides a "cheat sheet" for any future discovery disputes and will aid in deposition and trial preparation.
When propounding discovery requests, tailor your requests to your case. Opposing counsel will know if you send canned discovery requests, and it will be hard to defend when you're trying to explain to your judge why you are asking about child custody in interrogatories in a case that does not involve children. Likewise, when objecting to requests received from opposing counsel, state your specific objection(s) to each request as necessary. Boilerplate objections are also obvious, and if you do not make your specific objection(s) in the time required by your jurisdiction, you risk potentially waiving otherwise proper objections. A good idea is to review discovery requests for potential objections as soon as possible after receiving them, and if there are requests that solicit privileged information or otherwise warrant an objection, reach out to opposing counsel and try to resolve the issue first before seeking judicial intervention.
Exhibits
When dealing with exhibits during a hearing, trial, or deposition, it is easy to get overwhelmed and frustrated if you have to shuffle through your binders and notebooks looking for a specific document. One way to avoid this is to pre-mark all your exhibits and create an exhibit (or potential) log. It is also helpful to have multiple copies of your exhibits to provide to opposing counsel, the judge, etc. Before arriving at a deposition or court appearance, review your potential exhibits, consider the grounds for admission and the foundation needed for each exhibit, and determine how to overcome any possible objections. Stipulations to exhibits, where possible, will also save time and help you narrow down any potential arguments you may face when attempting to introduce and admit evidence.
Another great way to index your documents is to Bates Stamp everything and then send it back to opposing counsel for confirmation. Not only will this help you stay organized, but it will also help prevent any dispute about whether a document was sent or received. If you do this, you can easily keep a trial notebook with all the exhibits you intend to introduce, in addition to the other copies—that way, at the end of the trial, you have all exhibits in order and can easily track which exhibits were admitted and which were not.
The Golden Rule
Finally, be respectful to your colleagues, your clients, opposing parties, judicial staff, and any others involved in your cases. Regardless of how old or long you have been practicing, it never hurts to be reminded to treat others the way you want to be treated. Give your colleagues grace when they need it—one day, you may find yourself in that position. Our clients fare much better when we, as their counsel, maintain cordial and respectful working relationships with our adversaries. And depending on where you are geographically, you're likely to work with many of your same colleagues throughout your career. Your reputation and credibility can positively impact your career, client base, and case progression/success. You don't want to be known as the lawyer who thinks every issue in every case is an emergency or the lawyer who "creates" issues for fee-generating purposes.
We remember how people treat us and how it is to work with certain people. Keep in mind how you want to be known, and it will serve you—and your clients—well.
