Ethics
We lawyers often mistake forceful advocacy for belittling the other side's case, exaggerating our own case, and berating opposing counsel. These and similar tactics not only are unethical and professionally irresponsible, they also annoy judges. You may have read this story in the ABA's e-journal from November 21, 2003:
Characterizing one lawyer's acts as "gladiator tactics," a Superior Court judge in Seattle fined the lawyer's firm $400,000 for filing 18 counterclaims, eight of which were without merit and therefore violated Civil Rule 11. The lawyer tried to blame the client, but the judge responded, "Attorneys must be prepared to conduct an educated and enlightened analysis and to say 'no' to their clients when the circumstances so dictate." The chair of the Washington State Bar Association's Professionalism Committee reacted to the story by admitting, "Our thought is that judges are reluctant to sanction unprofessional behavior."
Not any more. Some of us get so busy trying to bury the other side in paper or berating them or belittling their
argument we sometimes lose sight of what a judge responds to positively. "Zealous representation" has nothing to
do with reams or decibels; it has to do with knowing the difference between true argument and being argumentative,
and we don't get that in law school.
For years I have shown lawyers how they could be far more effective by avoiding the trash talk, even words like "curiously" as in "Curiously, Plaintiff filed the motion after July 1st."; or "Defendant's excuse flies in the face of logic." These are the kinds of little digs most lawyers rely on for argument, for "zealous representation"; they have no effect on a judge except to irritate her and have her rely less on the lawyer who wrote them. Lawyers write like this because no one has ever taught them how to replace the trash talk with words no judge can deny.
In 2002 I turned my thoughts on Ethics and proper argument into a seminar, Winning with the Ethical Brief, which comprises the second half of Writing Techniques for Winning Cases. If you follow the suggestions, you will not win all of your motions and cases, but you will greatly increase the odds. To read further, see "The Irony of the Ethical Brief."
ETHICS CREDIT
Most states have approved Writing Techniques for Winning Cases for 6.5 to 7.8 hours of MCLE credit. Of those credits, the states have allocated half, or 3.25 to 3.9 to Ethics. I also offer the Ethics program, Winning with the Ethical Brief, as a separate, half-day seminar. [courses]