by Judge Gregory K. Orme, Utah Court of Appeals
Editor’s note: Except as otherwise noted, the views expressed are those of the author and not the Utah Court of Appeals; any other judge thereof, past or present; any other person, real or fictional; or Major League Baseball.
Many years ago, I wrote a column for the Salt Lake County Bar & Bench Bulletin called "De Minimis," borrowed from the well-worn (but blatantly untrue) Latin adage,"De minimis non curat lex" - roughly,"The law does not deal with trifles." It permitted me to spend just a paragraph or two on a comparatively small matter. The idea, at least, was that even though each topic was not worth a whole column, taken together, they might be. I want to follow that same format in this article, using that term loosely, and mention just a few little things. (Some might call many of these"pet peeves," but that sounds so negative.)
1. Cover letter vs. demand letter. One of the nicest parts of my job is the opportunity it gives me to work with bright, but brand-new lawyers, who spend a year as my law clerk. I get lots of applications from law students who think they might like to do this. The typical application packet is a resume, law school transcript, writing sample, and cover letter. The cover letters I used to get ended with,"Thank you for your consideration." Or perhaps the somewhat bolder, or at least more optimistic,"I look forward to hearing from you." Now they often end with,"I will contact your office later this semester to confirm that you received these materials and to determine whether you require additional information." Or worse yet,"I will contact you by February 15 to confirm that you received these materials and to schedule an interview at a mutually convenient time."
Somebody's been listening to too many tapes on effective sales techniques, or getting some bum advice from somebody. This isn't a place where such aggressiveness will pay dividends. I resent what sounds like a threat to track me down and put me on the spot. If I think there might be merit in pursuing your application, I'll call to set up an interview. If I don't, I won't and will send a short letter thanking you for your interest."Don't call us, we'll call you" is still the order of the day in this endeavor, as it is with theater auditions, even if general marketing theory has taken a turn to"in your face."
2. The addendum is your friend. The rules of appellate procedure permit counsel to include at the back of the brief items of particular importance. Many lawyers, for some reason, resist doing this. (Probably because they are so sick of the brief once it's written, they can't get it mailed off soon enough!) They take comfort in the fact that all the important documents are, after all,"in the record."
Here's the reality check. We have only one copy of the record. It is kept in boxes in the appellate clerk's office. Even once the attorneys are finished using it in the course of brief preparation, as many as three judges and six law clerks may have enough interest in it to haul part or all of it off to their own office. More importantly, in the two weeks before oral argument, I literally have briefs with me at all times. I read them at home, on planes, in restaurants, while commuting (only, I assure you, if my wife is at the wheel), and even while treading, if that's what one is doing when briskly walking on a treadmill.
If in reading the briefs it seems important to know what the insurance policy actually says, or whether the findings of fact were adequate, or whether the contract was clear and unambiguous, or whether a notice of claim was properly phrased, I want to be able to see the darn document then and there. How handy it is for me, no matter where I am and no matter the time of day or night, to be able to flip to the back of the brief and see a quality copy of the very document. And how nifty for the lawyer that I can flip back and forth between the lawyer's argument about the document and the document itself. By contrast, how annoying it is when, say, sitting at my dining table in the wee hours, to instead have to settle for making a note in my planner to track down the record in so-and-so a case, then to check it out, find the document, pull the record apart, copy the document, put the record back together, and return it to the clerk's office. The addendum presents an opportunity for lawyers, not a burden. ÔNuff said.
3. It's a courtroom, not a damn barracks! I'm no prude. If I hit my thumb with a hammer, it's not"flip" that reflexively emits from my mouth. In purely private conversation, I will employ the occasional swear word as a rhetorical device. At the same time, a courtroom is a place of dignity and solemnity. Like church and your mother's house, it is a place where coarse language is to be avoided if at all possible. Thus, to borrow from an actual happened-in-our-courtroom-just-the-other-day example, during oral argument it is preferable to refer to the defendant as having made"a threat, rather graphically phrased, to forcibly sodomize the victim, without the benefit of a name-brand petroleum jelly," than it is to quote the exact words of the defendant. The judges have read the briefs, where it is fine to include the verbatim quote, and you may be sure they have the exact language in mind. (How could we forget?) There is no need to offend the sensibilities of spectators, clients, and lawyers present on more mundane matters by quoting the defendant's exact phraseology in open court.
4. No place for typos. Speaking of cover letters, if I get a clerkship application that includes a cover letter or resume with a typographical error, the whole packet goes directly into the garbage can. Law clerks are expected to use great care in assisting with the preparation of what are, hopefully, cogent, well-written, polished judicial opinions. How likely is it that someone who cannot even be troubled to carefully proof a couple of one-page documents, specifically designed to catch a judge's eye and make a good first impression, possesses the level of care and concern requisite to being a good appellate law clerk?
5. Full disclosure of condiments. I don't really care about this, as I will eat anything but the internal organs of an animal (liver, kidney, etc.), raw sea cucumbers, and cooked cauliflower. On behalf of pickier eaters, several of whom I know and am close to, let me mention, on information and belief, how annoying it is, if you LOATHE pickles, to have a spear of same appear without prior warning at the side of your sandwich, much less on the top of your salad. And if your stomach turns at the very thought of olives, why should you have to spend half an hour painstakingly excising them from an entree billed as"chicken and cheese burrito?" If the manufacturers of axes have to add a product label cautioning against use of the product in scaling fish or spreading butter, why shouldn't restaurateurs be required to call a"chicken, cheese, bean, olive, onion, and cilantro burrito" exactly that, and to include, if applicable, a warning at the bottom of each menu:"CAUTION: Dill pickles and attendant juice may, in the discretion of the chef, appear on or near any menu item in the absence of express customer direction to the contrary."
6. Take me out to the ball game. And, as we're not in church, a courtroom, or my mother's house, let me close with a favorite quote that has inspired my life of devoted service in the law, or whatever:
You can't sit on a lead and run a few plays into the line and just kill the clock. You've got to throw the ball over the goddamn plate and give the other man his chance. That's why baseball is the greatest game of all.