Utah Bar Journal

FIND OR BE A MENTOR
My first suggestion to new members of the bar is to seek out a mentor. Find an experienced attorney in your firm or elsewhere who is willing to guide you in the early stages of your career. A mentor can help you to avoid common pitfalls and can impart wisdom and experience acquired over decades. To seasoned practitioners - when you see a new member of the bar struggling unnecessarily in the practice - please take time to meet with him or her. Give counsel and direction. The long-term returns on this investment are too great to be measured.

As a new lawyer, I had the opportunity to serve as a law clerk for former Chief Justice Richard C. Howe. During that year, I became the beneficiary of Justice Howe's long experience as an attorney, legislator, and judge. His influence shaped both my analytical skills and my character. He taught me the fundamental importance of correct facts. On his wall hung a small sign that read: "Every man has the right to his own opinion, but no man has the right to be wrong in the facts." He taught me to have respect for the hard-fought compromises that are hammered out in the legislature. Most importantly, he taught me the importance of kindness, patience, and humility. Each new member of the Bar should be the beneficiary of such a mentor.

THE STANDARDS OF PROFESSIONALISM AND CIVILITY SHOULD GUIDE YOUR PRACTICE OF THE LAW
In recent years, we have seen a general decline in the civility of public discourse. In the past, the resort to rancorous speech and demeaning personal attacks evidenced a weakness in the merits of one's case. Today, the client's expectations of you are often shaped by the attorneys portrayed on television. Tainted by these caricatures, the client feels you have not earned your fee unless you represent him zealously, and with malice aforethought. We must not permit our standards of behavior as a profession to be shaped by cultural expectations which increasingly gravitate toward hostility.

Recently, the Utah Supreme Court approved twenty Standards of Professionalism and Civility. In my view, this effort was not undertaken to cure epidemic incivility in the profession, but to countervail unfounded expectations about how lawyers conduct themselves. Consider Standards 1 and 2:

Lawyers shall advance the legitimate interest of their clients without reflecting any ill-will that clients have for their adversaries, even if called upon to do so by another. Instead, lawyers shall treat all other counsel, parties, judges, witnesses, and other participants in all proceedings in a courteous and dignified manner.

Lawyers shall advise their clients that civility, courtesy, and fair dealing are expected. They are tools for effective advocacy and not signs of weakness. Clients have no right to demand that lawyers abuse anyone or engage in any offensive or improper conduct.

Sadly, legal drama portraying such prudent behavior would certainly result in abysmal ratings and be discontinued.

The full text of the Standards is available at www.utcourts.gov under the heading "Attorney Resources." Please take some time to become familiar with them. Review them with clients whose expectations are otherwise.

SOME THOUGHTS ON LEGAL WRITING
Much of my time and your time is spent writing. Allow me to make some suggestions to you about this important form of advocacy.

A Persuasive Memorandum is not Necessarily a Lengthy One
One of the skills of persuasive writing is to describe complex principles in terms that are readily understandable. As you write, eliminate extraneous material.

Rule 7 of the Utah Rules of Civil Procedure permits a party to "file an overlength memorandum upon ex parte application and a showing of good cause."1 Utah R. Civ. P. 7 (c)(2). Certainly, in some cases, such a request is justified. However, use this tool judiciously. Often, what needs to be said can be said in ten pages of argument. Remember, the Mayflower Compact consisted of less than 200 words.

Avoid Unnecessary Footnotes
As a young law clerk at the Utah Supreme Court - fresh from the halls of academia - I had a penchant for writing footnotes. When lines of research yielded nothing useful, I could not simply leave it alone. The footnote was the only way to memorialize my diligent, but fruitless efforts. Justice Howe reminded me: "Derek, if you decide every legal issue in this case, I won't have any job security." In writing, remember that if a sentence is not important enough to be in the body of the text, perhaps it should not be there at all.

Send Timely and Complete Courtesy Copies
Courtesy copies are very helpful. As a general rule, the clerk is pulling files for oral argument less than a week before the hearing. A courtesy copy reminds the judge that the hearing date is approaching, and places before him or her a copy of your memorandum. Another advantage is that the judge is free to make notes directly on these documents.

Having said that, allow me to make two suggestions. First, courtesy copies are most helpful when they arrive well in advance of the hearing - generally ten days. Copies that are received the day before the hearing will not beat the file to the judge's desk. Second, courtesy copies should contain both your pleadings and those of the opposing party. To avoid confusion, consult with opposing counsel so that one courtesy copy containing all pleadings is filed.

Do Not Use Invective
The Third Standard of Professionalism and Civility provides:

Lawyers shall not, without an adequate factual basis, attribute to other counsel or the court improper motives, purpose, or conduct. Lawyers should avoid hostile, demeaning, or humiliating words in written and oral communication with adversaries. Neither written submissions nor oral presentations should disparage the integrity, intelligence, morals, ethics, or personal behavior of an adversary unless such matters are directly relevant under controlling substantive law.

Here are some examples from actual pleadings filed in the Fourth District that seem to run afoul of this rule. The names of the authors have been withheld to protect the innocent (or guilty, as the case may be).

"Under the law cited above, Defendants are taking the absurd position that Plaintiff agreed to arbitrate... [these] claims. Such a position defies common sense and reason."

"The defendant apparently has taken the rather simpleminded position that..."

"Rather then address the regulations that existed on February 5, 2003, Plaintiff's memorandum presents an unhelpful and specious analysis of 'today's regulations.' Plaintiff's insistence [on this position] is absurd."

"Defendant brings only one argument in its most recent attempt to delay resolution of this matter."

"The motion was denied. Not content with that, the Defendants have moved for an inerlocutory appeal and are again attempting to delay, hinder, and increase costs through these side maneuvers."

Compliance with the Standards is reason enough to avoid such writing. But equally important is the fact that conclusory statements about the opposing party's arguments are not persuasive. They offer no assistance to the Court in deciding the merits of the case. If opposing counsel's position is "simplistic," "absurd," "simple-minded," "unhelpful' or "specious," sound legal reasoning will eliminate any need to label it so.

Occasionally in oral presentations, counsel may use a term or expression that is overly harsh or critical. Such verbal slips - while ill-advised - are more understandable because they occur in the heat of argument. However, in written pleadings - where the advocate is at greater leisure to select terms, craft phrases, and construct sentences - more care should be taken.

BE RESPECTFUL EVEN WHEN THE COURT RULES AGAINST YOUR CLIENT
For the most part, counsel rarely have difficulty in observing this rule. I would caution newer attorneys to remember that your facial expressions can speak volumes, especially to jurors who watch you intently.

The case of In re Jesus Ramirez1 is a good reminder. In that case, R.C. Barry, Justice of the Peace for Tuolomne County, California,2 found Ramirez guilty of stealing Sheriff George Werk's mule. He imposed court costs and a fine of $100.00. Finding that Ramirez was indigent, Judge Barry ordered that Sheriff Werk pay the costs and fine instead, and that if Werk could not do so, the mule should be sold and the proceeds paid to the court.

Judge Barry then notes this exchange:

H.P. Barber the lawyer for George Werk insolently told me there were no law for me to rool so, I told him that I didn't care a damn for his booklaw, that I was the law myself. He continued to jaw back I told him to shut up but he wouldn't I find him $50 and committeed him to gaol for 5 days for contempt of Coort in bringing my roolings and dississions into disreputableness end as a warning to unrooly persons not to contraduct this Coort.

So remember, do not be unrooly. Never say or do anything to bring the roolings and dississions of the Court into disreputableness.

CONSIDER THE PURPOSE OF THE RULES OF PROCEDURE WHEN SEEKING DISCOVERY SANCTIONS
Practicing in accordance with the rules of procedure is critical to the efficient operation of the courts. In addition, the procedural rules afford litigants predictability. However, the ultimate objective of the rules is to "secure the just, speedy, and inexpensive determination of every action." Utah R. Civ. P. 1(a). The rules are liberally construed to achieve this end, and there is always a preference for deciding cases on the merits.

Rule 37 provides a continuum of possible sanctions for failing to comply with discovery orders, including entry of default judgment or an order of dismissal. Yet, the trial court is ultimately permitted to "make such orders in regard to the failure as are just." Utah R. Civ. P. 37(b)(2). Certainly, there are instances in which severe remedies are appropriate. However, as a general rule, these circumstances are rare. Forfeiture of a party's claims or defenses is a harsh sanction, especially when it is imposed because the attorney - not the client - acted inappropriately.

BE GRACIOUS IN GRANTING ACCOMMODATIONS TO OPPOSING COUNSEL
I have found that as a general rule attorneys are cooperative and courteous to each other. Experienced attorneys recognize that the Bar is small and that they will see opposing counsel again and again. They recognize that no matter how careful you are, no matter how many times you count days, no matter how many calendars you keep - everyone will at some point err, (pronounced [E:r as in "air"]; or for the purists among us [e:r as in "her"]). As Professor Royal Skousen, my linguistics instructor at Brigham Young University, once said: "To err (E:r) is human; to err (e:r) divine."

In granting accommodations, the application of Biblical principles is well-advised. In that dark hour - when you desperately need an extension of time or a continuance - let me assure you that you will receive from opposing counsel according to your works, whether they be good or evil. So, resolve now that you will do unto others as you would have done unto you. See Luke 6:31 ("And as ye would that men should do to you, do ye also to them likewise.").

Standard 14 addresses this issue:

Lawyers shall advise their clients that they reserve the right to determine whether to grant accommodations to other counsel in all matters not directly affecting the merits of the cause or prejudicing the client's rights, such as extensions of time, continuances, adjournments, and admissions of facts. Lawyers shall agree to reasonable requests for extension of time and waiver of procedural formalities when doing so will not adversely affect their clients' legitimate rights.

Of course courtesy in the asking is also required: "Lawyers shall never request an extension of time solely for the purpose of delay or to obtain a tactical advantage." Utah Stand. Prof. & Civ., ¦14.

USE THE TOOL OF SUMMARY JUDGMENT JUDICIOUSLY
Summary judgment is frequently used to resolve all or part of a pending case. Rule 56 appropriately spares a litigant the expense of trial when there is "no genuine issue as to any material fact" and he is entitled to "judgment as a matter of law." Utah R. Civ. P. 56(c). However, a motion for summary judgment should not be filed simply as a matter of course.

The appellate courts have recognized that some issues are particularly fact-sensitive and do not lend themselves to summary judgment. These include:

1. Fraud. See Theros v. Met Life, 17 Utah 2d 205 (Utah 1965).

2. Negligence. See White v. Deseelhorst, 879 P.2d 1371 (Utah 1994).

3. Reasonableness. See Darrington v. Wade, 812 P.2d 452 (Utah Ct. App. 1991).

4. Proximate Cause. See Harline v. Barker, 912 P.2d 433 (Utah 1996).

5. Employee Acting Within Scope of Employment. See Christensen v. Swenson, 874 P.2d 125 (Utah 1994).

6. Abandonment of Personal Property. See Gurgel v. Nichol, 429 P.2d 47 (Utah 1967).

7. Intent of contracting parties. See Novell v. The Canopy Group, 92 P.3d 768, ¦20 (Utah Ct. App. 2004).

8. Existence of an implied in fact contract. See Johnson v. Norton Thiokol, 818 P.2d 997 (Utah 1991).

9. Breach of the covenant of good faith and fair dealing. See Republic Group v. Won Door Corp., 883 P.2d 285 (Utah Ct. App. 1994).

10. Reasonable time. See Catmull v. Johnson, 541 P.2d 793 (Utah 1975).

11. Rejection of goods. See Colonial Pacific Leasing Corp. v. J.W.C.J.R. Corp., 977 P.2d 541 (Utah Ct. App. 1999), citing SPS Indus., Inc. v. Atlantic Steel Co., 186 Ga. App. 94, 366 S.E.2d 410, 414 (Ga. Ct. App. 1988).

12. Existence of a joint venture. See Rogers v. M.O. Bitner Co., 738 P.2d 1029 (Utah 1987).

13. Waiver. See Chandler v. Blue Cross Blue Shield, 833 P.2d 356, n. 8 (Utah 1992).

When these issues are presented, increased care should be taken in making the decision to file a motion for summary judgment.

DO NOT UNDERESTIMATE YOUR INFLUENCE FOR GOOD
Facing the demands of practicing law - which are certainly real - it is often easy to forget what we are about. In his essay, "Man the Reformer," Ralph Waldo Emerson wrote that to "clear ourselves" of civil society's collective wrongs, we must ask "whether we have earned our bread today by the hearty contribution of our energies to the common benefit," and that "we must not cease to tend to the correction of... flagrant wrongs, by laying one stone aright every day." Emerson, Ralph Waldo, Essays and English Traits, Man the Reformer, Easton Press, Norwalk, Conn. (1993).

People who come to court generally have problems that have spiraled out of their control. Some have at stake their property, livelihood, and fortunes. Some are injured and suffering. Some are dangerous and angry; others wronged and betrayed. Many are addicted, outcast, and despised. Without exception, plaintiffs and defendants are worried and anxious. In this dramatic environment, attorneys perform their work. What great opportunities you have to "lay one stone aright every day." I believe, with Emerson, that these individual acts can and do cumulatively work to the correction of broader injustices.

Finally, never underestimate the power you have to influence individuals for good. Much of the tale of Dr. Jeckyll and Mr. Hyde, by Robert Louis Stevenson, is told through the eyes of Mr. Utterson, the lawyer. Stevenson writes of this "lean, long, dusty, dreary" attorney at law:

He had an approved tolerance for others... and in any extremity, inclined to help rather than to reproveÉ In his character, it was frequently his fortune to be the last reputable acquaintance and the last good influence in the lives of down-going men.

Stevenson, Robert Louis, The Strange Case of Dr. Jekyll and Mr. Hyde, Barnes & Noble, Inc., New York (1992), p. 1.

It is the nature of the profession to afford you this opportunity almost daily - the good fortune to be "last reputable acquaintance and the last good influence in the lives of down-going men (and women)." It is in these critical moments, that attorneys perform their most important service. In so many ways - if you are "in any extremity inclined to help rather than to reprove" - you will be the influence that turns "down-going" lives upward. For this service, and for all else that you do on behalf of your clients and the courts, I extend my sincere gratitude.

1. In re Jesus Ramirez, Justice Court of California, Tuolumne County, Case No. 516 (1851), published in McClay, J.B. and Matthews, W.L., Corpus Juris Humorous, Barnes & Noble, Inc., New York, (1994), p. 54.

2. In Corpus Juris Humorous, McClay gives this background information on the judge: "Richard C. Barry, the notorious and nearly illiterate Justice of the Peace for Tuolomne County, California, during the gold rush era of 1849-1851, regularly meted out his stern brand of 'frontier' justice with scant regard for either 'book-law' or the rules of grammar and spelling." Id. at p 188.