The lawyers who appear in front of me generally bring their “A” game to every hearing, conference, or trial. Briefs are usually thoroughly researched and well-written. For evidentiary hearings and trials, the witnesses and experts are carefully prepared to testify and ready for rigorous cross-examination. Sometimes, though, attorneys forget that one of the most important things you bring with you when you walk into court is professional credibility.
Credibility is “the quality of being trusted and believed in” or “the quality of being convincing or believable.” From my perspective as a judge, a lawyer’s credibility is an essential element of effective advocacy. Establishing credibility begins long before you arrive for your first appearance. It begins when you sign the first submission to the court.
Federal Rule of Civil Procedure 11 provides that “[e]very pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney’s name[.] By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney . . . certifies that to the best of the person’s knowledge, information, and belief,” after a reasonable inquiry: (1) the submission is not being presented for any improper purpose; (2) the claims, defenses, and other legal contentions are warranted by existing law or by a non-frivolous argument for extending, modifying, or reversing existing law or for establishing new law; (3) factual contentions have evidentiary support or will have evidentiary support after further investigation or discovery; and (4) any denials of factual contentions are warranted by the evidence or are reasonably based on belief or lack of information.
The court may, after affording an opportunity to respond, sanction an attorney, a law firm, or party that violates Rule 11. Further, Rule 11 requires that a law firm be held jointly responsible for “a violation committed by its partner, associate, or employee.” Rule 11 sanctions are meant to be deterrent, not punitive, and can include nonmonetary directives. Any monetary sanction the court imposes must be limited to an amount sufficient to deter the offending conduct.
The possibility of Rule 11 sanctions generally keeps attorneys from filing flagrantly groundless submissions. But complying with Rule 11 is not enough. Rule 11 does not address or prevent the myriad other ways that lawyers can, and do, undermine their credibility with the court.
Lawyers are both zealous advocates for their clients and officers of the court with a duty of candor to the court. In motion practice, that means citing legal authorities that support your client’s position and acknowledging authorities that go against you. Address head-on in the brief controlling authorities that are adverse to your client’s position. Don’t ignore them or hope the other side will not find them.
ABA Model Rule of Professional Conduct 3.3(a)(2) requires that a lawyer disclose to the court “authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.” You will establish credibility with the court by doing your best to distinguish those cases that go against you. Explain why the case may not be controlling in the forum where you are litigating. When you can, show the court why the facts are distinguishable and a different result is required in your case. If you thoughtfully tackle these issues, whether or not you win the motion, it will bolster the believability of your advocacy.
Take just as much care with the cases that support your arguments. Read the cases you rely on in their entirety. Sometimes lawyers include partial quotations excerpted from a case, but when I or my law clerks examine the quotation in context, it turns out the case stands for a different proposition altogether. Even worse, on occasion, the holding in the case actually goes against the lawyer’s position. Make sure when you cite a case for a particular legal proposition that it actually stands for what you say it does. If authorities are miscited or appear to be quoted in a misleading fashion, this detracts from the persuasiveness of your arguments and undermines your credibility in the eyes of the court.
Other mistakes in motion practice can be equally detrimental to your credibility. It is surprising how often attorneys cite summary judgment cases when briefing a motion to dismiss. A motion to dismiss under Rule 12(b)(6) requires the court to assess whether the allegations in the complaint are sufficient to state a claim. Under the Iqbal/Twombly standard, a complaint must have sufficient nonconclusory factual allegations supporting a claim to raise a plausible inference that the plaintiff is entitled to relief. On a motion for summary judgment under Rule 56, on the other hand, the court must determine whether the moving party has demonstrated by admissible evidence that there is no disputed issue of material fact that warrants a trial.
Whether lawyers deliberately or inadvertently misunderstand the legal standard for the motion they are addressing, it raises questions in the judge’s mind. Does the lawyer not know that a different legal standard applies? Or does the lawyer think the court won’t notice the difference? Neither circumstance inspires trust and believability in the lawyer’s advocacy.
Do not include new arguments in a reply that you did not raise in the opening brief. Unless the opposing party requests—and the court grants—leave to file a surreply, they will have no opportunity to address the new arguments.
Finally, nothing diminishes a lawyer’s credibility like briefing that includes ad hominem attacks on opposing counsel and comments in ALL CAPS. I read the brief and feel like the lawyer is shouting at me. No matter how obstreperous opposing counsel may be, take the high ground. Stick to the issues.
When briefing is complete, the court may hold oral argument or take the matter under submission. If the court holds a hearing, the chance to argue the motion is a crucial opportunity to build credibility with the court. If it is your first appearance before the judge, become familiar with the judge’s courtroom protocol. In federal court, it is customary to stand when addressing the court. You may also need to speak from a lectern rather than from counsel table.
To start, instead of reading from a prepared script, ask the court if it has specific questions or concerns that you should address. Answer the court’s questions directly. If there are weak points in your client’s position that are clear losers, fall on your sword and concede those issues. Avoid colloquies with opposing counsel. Your primary task is to engage with and persuade the court. If you stay focused on that, even if you do not win the argument, you will have enhanced your credibility with the court for the next battle.
Legendary football coach Vince Lombardi supposedly said, “Winning isn’t everything. It’s the only thing.” But in law, just as in sports, you can’t, and won’t, win them all. Losing a motion, oral argument, or even trial is going to happen. Losing your credibility with the court, however, is entirely preventable.
