Advice to Lawyers from a Judge

|The Volokh Conspiracy |

From Judge Thomas B. Smith's decision last week in Doscher v. Apologetics Afield, Inc. (M.D. Fla.):

The Court has quoted from only three of the many childish emails [Doscher] and Livingston have exchanged. Obviously this needs to stop. Both sides need to learn that frequently the best response to immature behavior is to ignore it. Don't react, don't sink to the other side's level, don't try to fight fire with fire. There are disagreements in every case, that is what litigation is about. Most adversaries work out their disagreements while remaining calm and professional. Doscher and Livingston are admonished to discontinue this dumb conduct, work on their demeanor, and behave more maturely than they have to date. The Court hopes this rebuke will be sufficient to address the situation and on this basis, [Doscher's] motion for sanctions is DENIED.

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  1. How’d you like to be paying $600 an hour for people to send emails like that?

  2. Good advice for lawyers, and for Conspiracy commenters.

  3. It is worth noting that one of the parties, Doscher, is a pro se plaintiff in this case and, based on one of the emails in which the defendant’s lawyer tells Doscher “You play at being an attorney”, is not even an lawyer. That, of course, doesn’t excuse the other party, who is a lawyer.

    (The good news is that at least one of them isn’t being paid $600 an hour to be an ass.)

  4. Unfortunately, the decision will do little, if anything, to change their behavior. First, there are still many attorneys out there who believe that they must do everything not clearly illegal to zealously advocate for their client. Second, there are more than a few attorneys out there with out-sized egos, and will simple ignore everything the judge said because they have no shame and they truly believe they are smarter than everyone else including the judge. Finally, attorneys, who are not public service attorneys, do not react to this type of incentive, unless it hits them in the pocketbook. I know of an attorney who has been admonished at least once, and sanctioned $500, which is roughly an hour of billing for him, not even a slap on the wrist. He hasn’t even shown the slightest interest in changing his behavior. The fact of the matter is that most judges condone, or at least ignore, this type of behavior, viewing it as merely zealous advocacy. There are only a small number of judges who are willing to call out this type of behavior. In their view, they get admonished only once in a blue moon, and without any consequences. Thus, there is little to no downside to their behavior. And client’s don’t care about the behavior because it shows that their attorney is “fighting” for them.

  5. This judge knows nothing about Twitter Law.

  6. Don’t make me stop this car and come back there! You guys cut that out right now, d’ya hear me?

    I want to see the follow-up opinion when the admonition isn’t heeded. It’s bound to contain a factual finding that despite the court’s previous admonition, one side or the other, or both, continued their “dumb conduct.” I suppose that like obscenity, judges are expected to know what it is when they see it, even if others can’t seem to agree. Broad is the discretion in which the law cloaks the trial judge, fortunately.

  7. Depends on what judge you’re in front of. Often I’ve had a judge assume that if I don’t respond to every little charge, I’m not contesting it.

    Also depends on your client. When I’m about to present a client for deposition, if I know the questioning lawyer is a jerk, I say, “He’s going to rant and rant. I will just calmly object to the question if it’s improper. I won’t get into the gutter with him.” To a lot of clients, this marks you as a weenie.

    1. There’s a case in the last few years where attorneys fees were downgraded precisely because the attorney responded to each allegation, including the ones the judge thought obviously wrong.

      In essence the judge said “this is so obviously wrong you wasted time in replying, so you don’t get paid for it.” The problem, of course, is in identifying what your judge thinks is obviously wrong, for precisely the problem you mention – if you guess wrong, the judge will hold it against you too. Damned by the judge if you do, damned by your client (and your malpractice insurance) if you don’t.

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