By Judge Donna S. Pate
“The society which scorns excellence in plumbing as a humble activity and tolerates shoddiness in philosophy because it is an exalted activity will have neither good plumbing nor good philosophy; neither its pipes nor its theories will hold water.”
Lawyers of my generation are fond of reminiscing about what we term “the good old days.”
Back in our day, we say, we knew how to pick up the phone and take care of business; we had no need of snarky emails. Back in our day, we say, we knew how to fight fair. If we had a beef with another lawyer, we shared our grievances directly with that lawyer instead of airing them on Facebook. We duked it out in the courtroom during work hours, and then coached our kids together on the same baseball teams in the afternoons. Business was business, and it was never personal. We carried paper files with us in our briefcases instead of on iPads and cell phones, so we had no need to worry about chargers and backup drives. We did not feel the need to put everything in writing. Instead, we believed that a lawyer’s word was his bond.
These days, tired of hearing our lamentations about the way things used to be, young lawyers quickly remind us that it is a different day. Change, they argue, is good. For example, the pressure to rush to the clerk’s office to meet a filing deadline before the office closes at 5 p.m. is a thing of the past, as the ability to e-file before midnight eases those clerical burdens. Instead of driving hours to depose a witness in another county, you can simply set up a Zoom conference from the comfort of your office. “You old fossils just need to embrace change and get with it,” they say.
In these examples and more, they are correct. The modern world has brought many conveniences to our occupation.
Yet, one thing that has not changed is the need for all attorneys to uphold and maintain professionalism in our field.
The concept of professionalism is inherent in our name; we are members of the legal profession. We are governed by the Rules of Professional Conduct. However lofty that sounds, we have to remember that professionalism means more than a J.D. degree and a passing score on the bar exam. A common saying is that “professionalism is not the job you do, it is how you do the job.” Like philosophy, the practice of law is an exalted profession. Shoddiness should not and cannot be tolerated.
To be professional, what traits, then, must lawyers display?
Because I have been a member of the legal profession long enough to qualify as antique (in the sense of age, not value), my experience lends credence to my expectations on professional behavior. I have seen the good, the bad, and, yes, the ugly.
But to be sure I aptly answer the question, I did what savvy people in search of knowledge do these days. I googled “what are the traits of professional people?” as well as canvassed my judicial colleagues. I found many lists and heard many similar responses, so allow me to present my “Top Five Traits of Legal Professionals.”
- Professionals Look (and Sound) the Part
“Clothes and manners do not make the man; but when he is made, they greatly improve his appearance.”
According to Psychology Today, first impressions are formed in seven seconds, and those first impressions are based largely on how a person looks and sounds.
Whether we like it or not, physical appearance matters. Good grooming and proper attire are essential for lawyers. I am frequently reminded that very few lawyers dress up for work now, especially since so many are working from home. Jeans, T-shirts, cropped pants, and flip flops may be fine for the office, especially if your office is at home. However, that attire has no place in court. One of my young lawyer friends, himself a snappy dresser, told me that he chose his work attire based on a conversation with his father when he was eight years old. He was headed off to baseball tryouts wearing jeans and a T-shirt. His father sent him upstairs to change with this admonition: “If you want to be a baseball player, look like a baseball player.” The same goes for lawyers.
Judges do not expect lawyers to have a personal tailor or a wardrobe from Brooks Brothers or Saks, but we do expect them to look business-like and, well, professional. It is always a good practice to find out whether the judge before whom you are appearing has a dress code, even for virtual appearances or conferences. To be safe rather than sorry, ask a colleague, the judge’s judicial assistant, or, if that fails, reach out to the judge directly.
Now a word about words. Lawyers make just as many first impressions by the spoken or written word as by personal appearances. The first glimpse may be, for example, a phone call, a demand letter, or a request for discovery. As we said, lawyers of my generation love to talk about how things were “back in our day.” While I am far removed from my first-year legal research and writing class, I well remember navigating A Uniform System of Citation (the “Blue book”) and The Texas Law Review Manual on Style (the “White book”). I am assured by recent law school graduates that those publications, or similar ones, are still used. Of particular relevance to the topic of this article is the “Foreword” from the Second Edition of the Texas Law Review Manual on Usage and Style:
The only tool of the lawyer is words. It is therefore regrettable that, as generations of law teachers have lamented, most law students and lawyers do not understand the basic principles of English usage. The great goal in writing is clarity. The ability to state one’s thoughts in a clear and understandable fashion is of importance, whether the task be writing a law review note, drafting a statute or a contract, preparing the opinion of an appellate court, making a jury argument, or even answering an examination question. The rules of usage developed over the centuries are intended to produce clarity. Observance of them lends a professional polish to the product, and this in turn inspires confidence that the writer or speaker is equally professional and equally competent in the substance of what he says.
To make your legal writing look more professional, I suggest the following:
First, find a treatise on legal writing and brush up on the basics. The Manual on Usage and Style provides clear and simple direction regarding punctuation, use of numbers and symbols, capitalization, grammar, and word choice. Other helpful publications include The Elements of Style, by William Strunk, Jr. and E.B. White, and A Practical Guide and Legal Writing and Legal Method, by John C. Dernbach and Richard Singleton, II.
Second, remember that less is more. Rule 8 of the Alabama Rules of Civil Procedure requires that a pleading setting forth a claim for relief shall contain a short and plain statement of the claim showing that the pleader is entitled to relief and a demand for judgment. That’s all. A party’s answer shall state in short and plain terms the defenses to each claim and an admission or denial of each averment. That’s all. To drive home the point, Rule 8(e), captioned “Pleadings to be concise and direct,” says that each averment of a pleading should be “simple, concise, and direct.” Logic and common sense dictate that the rules regarding pleadings work well for legal writing in general.
Finally, to make your legal writing look like a professional wrote it:
(A) Do not write in all capital letters. It is against all rules of style and form, and it makes the reader think that you are yelling at them.
(B) Do not use exclamation points at the end of every sentence. You could not possibly be that excited. As my daughter, an educator, tells her students, “If you would not shout it at your reader, you do not need an exclamation point.”
(C) Do not make your writing look as if you simply transferred your stream of consciousness to paper and filed it with no thought to proper form or professional norms. For example, the repeated use of the first person (the personal pronoun “we” or “I”) and the use of vernacular phrases (such as “we’re gonna” or “we don’t know what else to do here”) are inconsistent with professional standards and customary practices in the legal profession and are inappropriate.
(D) Do not rely on Spellcheck. Granted, it is a useful tool. But if you write “we road down the rode,” your processor will not flag any errors. There is no substitute for good, old-fashioned proofreading (like we did back in our day).
I hasten to add that no judge I know is going to check your citations against the Bluebook, or correct your run-on sentences, your grammar, or your spelling. (Well, I can think of one who might.) But we notice.
- Professionals Are Respectful
“Good manners on a man are like wearing an exquisite suit. They never go out of style.”
The Preamble to the Rules of Professional Conduct states that, “A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers, and public officials.” In addition to those worthy recipients, I would add clients, opposing parties, jurors, your firm’s employees, the judge’s staff, court reporters –you get the point. Everybody is somebody, and everybody deserves respect.
The basic definition of “respect” is this: “having due regard for the feelings, wishes, rights, or traditions of others.” Sounds suspiciously like “do unto others,” doesn’t it?
Judges and lawyers alike frequently lament the erosion of respect and civility in our profession. The reason for that erosion, it seems to me, is our failure to practice the manners our mamas drilled into us from childhood. As children, we said “please” and “thank you” and “yes ma’am” and “pardon me” without thinking twice. If another person was speaking, we knew harsh consequences would befall us if we even attempted to interrupt. Sadly, we all too often leave our manners at home when we leave for work each day. The true professional, however, knows those good manners still have just as much a place in the courtroom or the office or mediation as they did at the dinner table or in Sunday School. Dust them off, and use them.
Of particular concern among judges is the emerging and totally disrespectful practice of using written submissions (pleadings, motions, briefs, and the like) to call out opposing counsel with insults and accusations of misconduct. Completely absent from Rule 8, or any other Rule, for that matter, is any suggestion that such use is proper. Not only is this practice unprofessional, it is also ineffective. Consider the following observation by the late Supreme Court Justice Antonin Scalia and Bryan A. Gardner in Making Your Case: The Art of Persuading Judges:
Cultivate a tone of civility, showing that you are not blinded by passion. Don’t accuse opposing counsel of chicanery or bad faith, even if there is some evidence of it. Your poker-faced public presumption must always be that an adversary has misspoken or has inadvertently erred–not that the adversary has deliberately tried to mislead the court. It’s imperative. As an astute observer on the trial bench puts: “An attack on opposing counsel undercuts the persuasive force of any legal argument. The practice is uncalled for, unpleasant, and ineffective.”
Also troubling is the practice of divulging communications with opposing counsel which were clearly intended for lawyers’ eyes and ears only. It’s one thing to say “opposing counsel takes no position on this motion.” It’s quite another to say “opposing counsel said he personally does not oppose this motion but his client is very difficult and will not let him consent.” Equally disturbing is the highly unprofessional practice of attaching correspondence from opposing counsel to AlaCourt filings. There is no quicker way to destroy trust between counsel.
- Professionals Have Integrity
“In the simple moral maxim the Marine Corps teaches–do the right thing, for the right reason–no exception exists that says: unless there’s criticism or risk. Damn the consequences.”
–John Rushing, United States Marine Corps
Some say that integrity is synonymous with honesty and uprightness. Another definition states, “having a firm adherence to a code of especially moral or artistic values: incorruptibility.” Perhaps the best definition of integrity is the simplest one: It’s knowing the right thing to do, and doing it, no matter who’s watching.
For the lawyer, that means knowing how to advocate zealously for a client while playing by the rules. It means valuing everyone’s time by not wasting it. It means being honest. With everyone. At all times. No matter what. It means knowing what goes around comes around. It means never taking cheap shots. It means never going for the jugular unless it is absolutely necessary, which seldom happens. It means giving the client the bang to which their buck entitles them. Finally, perhaps the most important thing about integrity is this: once you lose it, rarely are you able to regain it. Guard it carefully.
- Professionals Are Reliable
“A man who lacks reliability is utterly useless.”
Reliable lawyers make happy judges; the converse is also true. The “big ticket” items here include:
Read and comply with orders
The following example demonstrates why I feel the need to state the obvious. Because of COVID-19 concerns, I entered the following order in several criminal cases:
Counsel and parties are ordered not to appear in person for the callback docket on March 21, 2021. By close of business on March 25, 2021, counsel for defendant shall file a status report via AlaCourt advising defendant’s response to the State’s offer.
Simple enough, right? Two lawyers showed up in person with their clients. Several more sent emails to my judicial assistant rather than filing a status report via AlaCourt. When questioned, all said the same thing: “I guess I didn’t read the order.”
Nobody’s perfect. Every lawyer is bound to miss something. Saying “that didn’t get on my calendar” is acceptable once. Maybe twice. But after that, it is unacceptable. Fix the problem.
DO NOT BE LATE
When an order says a docket starts at 9:00 a.m., that does not mean 9:05 or just whenever it’s convenient to get there. Being punctual requires effort. Tardiness is rude and disrespectful of others’ time. You know how long it takes to get to court; the route doesn’t change. You know the elevators will be full on the Monday morning of a jury week. Plan accordingly. Always have the court’s number available. If you hit a traffic snag, have a last-minute childcare issue, or forget your exhibits and have to go back to your office, a quick call to the judge’s office will cover you.
Provide a conflict letter
Looking for lawyers who do not provide conflict letters is a huge waste of judges’ time. One reliable and seasoned lawyer in my circuit follows an effective practice–not only does he file his conflict letter, he gets to the courthouse early enough to stop by the office of each judge before whom he is set to appear that day to remind us of his whereabouts.
This is how I explain the importance of reliability to new lawyers: Every time you read and follow an order, or show up prepared and on time, you make a deposit in your Bank of Reliability. Chances are you’ll miss something along the way, and you’ll have to make a withdrawal. Just be sure you don’t have insufficient funds.
- Professionals Are Accountable
“Ninety-nine percent of all failures come from people who have a habit of making excuses.”
–George Washington Carver
I can say without fear of contradiction that the perfect lawyer remains unborn. Everybody makes mistakes. Despite the best intentions, we miss appointments and court appearances. We miss deadlines, we misinterpret case law, and we make a host of other mistakes. When those circumstances inevitably happen, it is very easy to take the very unprofessional approach of playing the blame game. But when a mistake is made, professionalism requires at least two steps. The obvious first step is the hardest: admit your mistake and accept the blame. For some, it’s very difficult to utter words such as “I was wrong” or “It’s my fault.” Some have the notion that admitting a mistake shows weakness or vulnerability, when in fact the opposite is true. Admitting a mistake takes courage. It earns credibility and respect. Refusal does just the opposite. Admitting a mistake also gives you a clear conscience and allows everybody to move on to the next thing.
The second step is a plan for making sure the mistake does not happen again.
One final consideration–if a lawyer admits a mistake, what should opposing counsel’s response be? If you are 100 percent certain that you have never and will never make a mistake, take a hard line. Demand a pound of flesh. But if your first thought is (and it should be), “There but for the grace of God go I,” show a little grace.
I conclude with one final reference to the old days. Some of you may remember a fairly successful former Alabama football coach named Paul William Bryant. He once recounted a story about how he befriended an elderly diner owner in south Alabama on a recruiting trip. Years later, he successfully recruited the man’s grandson to play at Alabama. The recruit made clear that he chose Alabama because Coach Bryant had been kind to his grandfather years earlier. Coach Bryant ended the story with these words: “It really doesn’t cost anything to be nice, and the rewards can be unimaginable.”
The same is true for professionalism. It costs nothing. And the rewards can be unimaginable.