Chapter 15 - Oh No! Not Procedure

Yes! Procedure! It doesn't matter how much substantive law you know, you, as a licensed attorney, are worthless without a command of procedure. This does not mean you need to know it backward and forward before offering your services, but you better get a command of it in short order.

In fact, when I was laid-off, I knew an attorney friend who did family law, and he knew I had a mastery of procedure. He would get non-family civil cases but could not take them because he, admittedly, was a "cookie cutter family lawyer." Sometimes, he would have a family case that could use a heavy dose of procedure, too. He was an invaluable source of referrals. Hint: Get to know procedure and hang with some attorneys who do not know it very well and do not even want to try to learn it.

I will never forget a time about five or six months as a new solo, my friend came across a family client whose ex-wife was trying to open up the years-old divorce and nab his retirement in a bill of review proceeding. We received a $20,000 retainer on that one! That was bold for a young punk like me, as well as my friend who was only two years older, but we got it and went straight to the bank. Neither of us received that big of a retainer before that. It was a record- setter. I was 29 or 30 years old at the time.

Family lawyers are notorious for not knowing and using all the tools of procedure at their disposal. Motions for summary judgment are practically unheard-of in family courts. If you have a good basis to seek summary judgment on an important property issue in a divorce case, go for the gusto! The poor judge might be caught off guard and deny it, but a confident and knowledgeable judge will be impressed and grant it without hesitation. You will catch the eye of everyone in the courtroom just by arguing it because no one in the courtroom has ever seen this before.

Mastering procedure is easy to do. In fact, it is a shame that the profession ever made up a distinction between "substantive law" and "procedure," as if to imply procedure is dull and not important. Cases are won or lost on procedure every single day. Try telling an attorney who failed to attach a controverting affidavit to his response to a motion for summary judgment not to worry, "It wasn't substantive law."

There is only one good way to go about learning procedure. In all states, there is always some procedure guru who wrote a 500 page paperback book with the rules of procedure and lots of commentary and case law discussion on the rules. These books are typically $80 or a bit more. This is a rocking-good deal! Get the book. That book should never leave your side. It goes to court with you and follows you like a little brother.

It is 500 pages. Read it. Front to back. Do not wait and read selected parts as issues arise. Read the whole thing - preferably before you have ever even met with your first prospective client. If you cannot discuss and demonstrate a command of court procedure, you are winging it. It is a weak position to be in as you are trying to convince the client to pay you a retainer. You look strong in front of a client when you can whip out a big book with micro-thin pages and within seconds, point the client to the rules that will drive how his case is to be handled. Impressive! That book is your #1 right-hand man!

When you come across any parts in the book you do not quite understand, go on-line to your new subscription to annotated statutes and go read the annotations to the rules in question. When you read enough of them, you will have a reasonably good understanding.

Your goal, as a new lawyer, is to be "hot stuff" in the client's eyes. A "young shark." Have a solid command of what pleading and motion practice is like. Use your knowledge to minimize the need to go back and amend your pleadings and motions because you did not know how to do them right in the first place.

A case in point involves motions for new trial. If you miss the answer deadline, a default can be rendered against your client. You can file a timely motion for new trial to set aside the default judgment. These are more often granted than not because judges do not like to see attorneys go down in flames over malpractice.

But try explaining to your client that you have to file a motion for new trial. Why? Because you missed a deadline. This is not a proud moment. Know the rules. Minimize the likelihood of having to be embarrassed like that. Do not set yourself up with opportunities for the client to doubt your competence.

The same goes for amending pleadings. Lawyers have to amend to add causes of action all the time. This is not a sign of lack of skill, but it is a sign that the lawyer doing the amending is vulnerable as the case was originally pled. So, take your time to craft good pleadings and motions based upon solid research.

Do not throw the kitchen sink into your pleadings and motions "just because." In a malpractice case, do not plead breach of contract if you know it will not get you any mileage. In fact, in many jurisdictions, this is referred to as "splintering" a cause of action. It is frowned- upon, and usually the theory which is considered superfluous is easily attacked and defeated in a motion for summary judgment. There is no point in throwing in the kitchen sink when it will be met with a motion for summary judgment and you will do all the work to respond and lose anyway. Plead what your case will support in the law and no more. Client's get feedback along the way, as rulings are made in a case. Even an "unimportant" adverse ruling is seen by the client as cause for concern. "Is my case bad? Does my attorney know what he's doing?"

The same goes for litigious evasion when it comes to responding to discovery requests. You can almost always tell the inexperienced and lazy attorneys by their answers to discovery requests. They load them with objections and give barely any responsive information. Do not be tempted to go that route. It is inartful. It is lazy. It conveys the wrong idea to the client. Your client thinks, in the beginning, you are a real tough lawyer, but ultimately, a motion to compel is going to force you to go back to the client and tell him why all of your objections were worthless and a waste of his money. He has just seen you lose the first battle and waste his money in one fell swoop! If you are inclined to evade discovery because it will be a lot of work, you need to tell your client to get you some more money to pay for that work. This is just the cold life of lawsuits and litigation. Do not run from headaches. Turn them into billing opportunities.

If you take anything from this chapter, just know that attorneys who do not have a command of all aspects of procedure have no business in court, and they have no business taking on matters that will go to court. This eliminates about 60% of the business out there. Get your book and read it. If you are not inclined to master procedure, do yourself a favor and avoid malpractice and worrying about when you will be discovered to be the "non-litigator who got in over his head." These attorneys are everywhere.


2015, Jeff M