One of my most rewarding professional roles is that of a mentor to younger attorneys. Being that I am a courtroom specialist and litigator, I especially am prone to dispense advice on the practice of law in the courthouse. In fact, I often present continuing legal education (CLE) seminars to attorneys on different aspects of litigation. With younger attorneys, however, I try to cover more of the basics, such as how to conduct yourself in court.
Generally, I find young attorneys don’t understand the value of reputation. Many of them are so focused on the fight and the potential victory, they forget just how small the local legal community is, even in a city as large as my hometown of Houston. Thus, the three most important tips I share with young litigators center on how to build and maintain a good professional reputation before the judiciary, who admit that they talk among themselves about the lawyers who appear before them.
I’m approaching my 20th year of licensure as an attorney, and from day one I have worked hard to build an impeccable relationship with judges. I have been complimented by members of the judiciary on how I conduct myself in court, which is a testament to the three principles I adhere to and share with young litigators. I hope younger readers will take heed of them and older readers will be reminded of the basics of our professional life in the courtroom.
I make sure to inform every new client who retains me that I have ethical obligations as an attorney, and that sometimes those trump being a zealous advocate for my client. The Texas Lawyer’s Creed (tinyurl.com/glmtcno) is attached to my Legal Representation Agreement that each client signs when retaining my firm. In addition to discussing the Creed, I also discuss the Texas Rules of Professional Conduct (tinyurl.com/haby3xh), which are modeled after (although not exactly the same as) the American Bar Association Model Rules of Professional Conduct (Model Rules; tinyurl.com/jexj7dj).
Model Rule 3.3 covers an advocate’s duty of candor toward the tribunal. In general, the duty of candor includes not knowingly making false statements of fact or law toward the court and taking remedial measures, including, if necessary, disclosure to the court, should the lawyer know that a person (client or non-client alike) intends to engage, is engaging, or has engaged in criminal or fraudulent conduct related to the proceeding at issue. This duty of candor continues to the end of the proceeding and overrides the attorney-client privilege. Furthermore, in an ex parte proceeding, the lawyer must disclose all material facts known to the lawyer that would allow the court to make an informed decision, whether or not the facts are adverse.
In simple terms, we are obligated to tell the truth in all material respects, and we should be liberal in what we deem to be material. While attorneys are expected to tell the truth as officers of the court, which is why so many judges waive the oath requirement for attorneys, candor seems to be lacking in many court proceedings. Once the judiciary comes to the conclusion that an attorney lacks candor, it is a tough road to repair the damage done to that lawyer’s reputation. Thus, place candor toward the tribunal at the top of your list on how to practice well in the courtroom.
In addition to advising young litigators to be candid and truthful toward judges, I admonish them to be reasonable as well. Reasonableness takes many forms, but generally it means taking defensible positions that won’t fly in the face of normal thinking. This doesn’t mean that you can’t think outside the box, as long as the creative solution has true merit.
Being reasonable is covered by Model Rules 3.1 and 3.2. According to Model Rules 3.1, an advocate shall bring forth meritorious claims (or defenses) and contentions therein, based in law or fact. Model Rules 3.2 requires an advocate to make reasonable efforts to expedite litigation consistent with the interests of the client. Together, these two rules mandate reasonableness before the court.
I recently had a judge acknowledge in open court that I am always reasonable when I am in the courtroom. Quite frankly, the judge was putting me on the spot because I had a client who wasn’t appearing to be reasonable, thus the judge was asking me if I was really going to argue my client’s unreasonable position in open court. I was in a bit of a quandary at the moment, but luckily cooler heads prevailed and the parties were able to agree on reasonable orders to be signed by the judge.
While that particular hearing put my reputation for reasonableness to the test, I was glad to have such a reputation to begin with. Judges before whom I appear often know that I am reasonable in the positions I take and remedies I request, thus they are more open to consider my arguments and requests from the outset. For judges new to me, I try to earn their trust right away by being reasonable in my pleadings. I have found that being reasonable ingratiates me with judges on a practical level.
The third pillar of conducting oneself professionally in the courtroom is fairness. Fairness is, in the most basic sense, simply the Golden Rule. When you earn a reputation for fairness, the judiciary will consider your arguments and requests more easily, which can do nothing but help your clients.
Model Rule 3.4 covers fairness to opposing party and counsel. Rule 3.4 lists several actions that a lawyer shall not take, such as obstructing a party’s access to evidence, falsifying evidence, or making a frivolous discovery request (to name just a few), but the gist of the rule is not to take actions that you would not want committed against you.
While unfairness may allow you to gain the upper hand in a particular proceeding, the judge knows when you’ve been unfair. Your unfairness will be dealt with either by the judge in the proceeding or will come back to haunt you in harsher considerations of your arguments and requests in other proceedings. Your local judiciary knows which lawyers are fair in litigation and which lawyers need to be monitored or deserve a suspicious consideration of all their arguments given their penchant for unfairness. Being a fair advocate not only builds your professional reputation among the judiciary and your colleagues in the profession but also helps your client by cloaking your client’s case with your good name.
A Good Reputation Earns Results
Young lawyers need to understand that a good reputation in and out of the courtroom leads to good results for their clients and professional success for themselves. As children, none of us liked the bully on the playground or the unreasonable loudmouth in the classroom. As lawyers, we need be neither in the courtroom. By being honest, reasonable, and fair, a lawyer will build a wonderful, sincere reputation among the judiciary and the lawyer’s colleagues.
My clients have often been the beneficiary of my reputation when their positions and actions haven’t necessarily warranted the respect afforded them but for me. Many clients are sophisticated buyers of legal services and therefore specifically search for attorneys whose reputations will only help their causes. By following the three basic tenets herein, lawyers can be assured that the positions they take or the requests they make will be genuinely considered by the judiciary. While I encourage all lawyers to be honest, reasonable, and fair, I know that such principles shine best in the courtroom!