By Katherine Becker
At a recent Ventura County Barristers event, I had the privilege of speaking with a few members of the Ventura County Bench. I took the opportunity to ask them two questions: First: If you could give new attorneys one piece of advice, what would it be? Second: What is the single most common mistake you see new attorneys make in your courtroom? They provided illuminating tips that all attorneys should keep in mind as they progress through their careers.
IF YOU COULD GIVE NEW ATTORNEYS ONE PIECE OF ADVICE, WHAT WOULD IT BE?
Judge Brian Back: Prepare. That may seem obvious, but there are times when it seems like counsel has not really prepared. While judges know almost everything (joking), there are a few things we don’t know. That is why counsel should do extensive preparation in order to present a concise argument to the court, and anticipate what they will need to rebut after opposing counsel’s argument. Often the preparation requires a careful and repeated review of applicable statutes. Counsel should read the statute as if they have never read it before, then read it again, and again, and be aware of the importance of words, word placement, punctuation (commas, etc.) and etc. Throughout argument and after the judge rules, counsel should always remain civil. Conduct in court–good or bad–can have a profound impact on the current ruling and the credibility of counsel in future appearances.
Judge Vincent O’Neill: Prepare thoroughly, identify the key issue, argue succinctly and accept the ruling graciously.
Judge Glen Reiser: If you do not agree with the judge, please do not say “Your Honor, with all due respect.” The judge will have a working interpretation of that sentence, and it has nothing to do with respect. It is better to acknowledge the general correctness of the judge’s thought processes, and explain why the facts in the matter before the court, or the analysis in some previously unconsidered case, will allow the court to reach a different decision.
Judge Matthew Guasco: Follow your passion in lawyering. There is a strong and understandable temptation to find a job, any job, especially in this economy. Too many lawyers do that, however, only to learn a year or two later that they hate what they are doing. Identify the type of law you want to practice and go for it. Typically, we excel in the things for which we have a passion. The better you are as a lawyer, the more likely it is that you can make a sustainable living.
WHAT IS THE MOST COMMON MISTAKE NEW ATTORNEYS MAKE IN YOUR COURTROOM?
Judge Brian Back: If there is critical evidence that counsel wants to have admitted, counsel should think of more than just one way to get the evidence admitted. Counsel should open up the evidence code and any pertinent cases, and have notes regarding the two or three or four pathways to hopefully get the evidence admitted. And, of course, this comes down to preparation in advance. The mistake we see is counsel being shut down with the first attempt to have evidence admitted and then failing to pursue other avenues which would allow its admission.
Judge Vincent O’Neill: Failure to proofread documents carefully.
Judge Glen Reiser: Probably the most common mistake among young attorneys (other than the temptation to highlight the lack of courtesy or civility of opposing counsel) is the compulsion to repeat what is in the moving or opposing papers, rather than tiering off of those points into more nuanced discussions about why the law is the way it is, and how that logic or policy embraces the facts before the court.
Judge Matthew Guasco: Following bad advice. When you are a new attorney, there is much you have to learn. Naturally, more senior attorneys will give you advice. Often, this advice is good and you should follow it. Other times, you will be misled to your detriment or that of your client. For example, your research leads you to conclude that the best approach to the motion or trial is to do A. Your supervising attorney disagrees and tells you to do B. That approach does not feel right to you, but you defer to the more senior attorney. You execute plan B, only to be told by the judge that you have taken an unreasonable and unsupportable position, possibly earning you or your client sanctions. Lesson learned. A lawyer must cultivate his or her own independent judgment. You should solicit input from more senior attorneys, but, in the end, you and you alone are responsible for your decisions and actions. If your supervising attorney asks you to do what your judgment and instincts say is wrong, speak up. Provide your reasoning. You may be surprised to learn that good supervising attorneys will listen if you have sound, persuasive reasons supporting a particular course of action. If your supervising attorney insists that you do the wrong or unethical thing against your better judgment, it is your choice where you work. More importantly, you are responsible for your professional and ethical choices as a lawyer, not your supervisor.
Katherine Becker is a founding partner at Schuck, Becker & Dehesa, LLP in Santa Paula, California, and practices estate planning, probate and business law. Katherine is a special advisor to the California Young Lawyers Association Board of Directors.