Editor’s note: This is an edited version of an article written by Ryan J. Gaffney, Cory J. Rothbort, Victoria Miranda, and Alexandra Loprete that appeared in the Fall 2021 edition of Dictum, a publication of the Young Lawyers Division. To read the full issue, click here (login required).
A panel of judges and lawyers at a recent New Jersey State Bar Association seminar organized by the Young Lawyers Division offered substantive pointers, identified common missteps, and provided invaluable advice for new attorneys. Here are six key lessons.
- Know the Rules.
If there is one cardinal rule of lawyering, it is knowing the Rules of Court. Whether you are filing a routine procedural motion or a vast dispositive submission, you have an obligation to be familiar with and abide by the Rules of Court. Every new attorney should have a current Rule Book, and rely upon it as their “bible,” referring to it whenever they are given a new assignment, have a procedural question, or encounter a legal quandary. Not knowing or following the Rules of Court is a quick way to lose your motion and can happen without the merits ever being addressed. Glaring rule violations are discourteous to the Court and show an attorney did not take the necessary time to prepare their papers before submitting them.
- Always Extend Professional Courtesy.
Extending professional courtesy goes beyond being cordial and calls on attorneys to confer with their adversary, always treat each other with respect, and be generous when asked to consent to routine matters such as motion adjournments and discovery extensions. As the judicial panel members noted, involving the court in argument over trivial matters does not advance either party’s position.
It is a common mistake for attorneys to get caught up in the adversarial nature of litigation and not realize they are being unreasonable. Lawyers have long memories, and professional courtesy is a two-way street; you never know when you will be making the call to your adversary asking for a courtesy – so be sure to always extend it to them. New lawyers in particular are encouraged to pick up the phone the old-fashioned way and give their adversary a call, rather than sending emails or texts.
- Give the Court What it Needs.
It is important to remember that the Court cannot rule in your favor if you do not provide the necessary materials needed to review the case and make a decision. This occurs most commonly when attorneys do not include the necessary exhibits to their motion papers or do not fill out the required forms with their pleadings, such as complete case information statements. Another common mistake is not providing a numbered statement of facts or response with a summary judgment motion.
When it comes to the substance of your motion papers, the same concept applies. New attorneys are encouraged not to reinvent the wheel when it comes to providing legal authority, but they should certainly give the court the authority that it needs to rule in their favor. Even the most well-composed rule abiding submission will not be successful if it does not include authority permitting the court to do what you are asking.
- Be Clear, Concise and Credible.
“It would have been shorter if I had more time,” is a commonly uttered phrase when it comes to brief writing. When drafting your papers, give yourself plenty of time to learn and digest the material before finalizing your arguments. For new attorneys, they may need to spend more time than they expect reading through the file and learning the law. But in order to have a clear and concise argument, you should “think before you write, and read before you think.”
It is important to remember that a long-winded and convoluted brief does little to advance your argument. Judges and their law clerks handle hundreds of cases a week, and they need to understand your arguments quickly and rule efficiently. Outlandish arguments and elaborate prose will do nothing to increase your chances of winning.
- Be Prepared at Oral Argument.
There is no subsitute for being prepared. As a new attorney, it is inevtiable that you will be put in the position of handling a proceding for a case that you know nothing about. Regardless, you have an obligation to read and know the file so that you can answer any questions the court may have. All too frequently, unprepared attorneys appearing in court do not know their file and make the excuse that they are “covering for someone.” Such an excuse is unprofessional – if one can read, then they can become familiar with the file. Should a new attorney have trouble understanding how prepared they should be, they should imagine their client sitting behind them at a proceeding where the Judge is asking them basic questions about the case they cannot answer.
- “Precedent Makes Law; If You Stand Well, Stand Still.”
These words inscribed at Hudson County’s Justice William J. Brennan Jr. Historic Courthouse eloquently remind attorneys of this maxim. While it is essential to be prepared, it is also important to pay attention and sometimes shut up. We are all familiar with the lawyer that cannot help continuing to argue, even though its clear they have won. Or the lawyer who drones on for two hours in their opening statement as if they are paid by the word. Such behavior wins you no favors.
It is always a judgment call as to when you should sit down and when you should continue to argue, but once your point has been made clearly and preserved on the record, there is no need to continue chattering on. The same goes for the attorney who has already lost. Once your position has been preserved on the record, take the high road and save continued objections for your appellate papers. Judicial economy should not be wasted, and neither should your words. It is wise to formulate your argument so you get the most important things out first in the event you are cut off later on.