As lawyers we often feel our heartstrings tugged by our clients’ stories, but have you ever felt compassion for the judge overseeing your clients’ case? I’ve always thought of my judges as Spock-like, easily holding their emotions steady in their unceasing quest to remain impartial. A bit unhuman-like, actually.
But recently, I had an expansive moment of compassion for every judge I’ve ever argued/appeared before or will in the future.
It came out of nowhere, during a presentation by the (Honorable) Justice Scheinkman at the New York City Bar Association (at a CLE on appellate practice). Justice Scheinkman is currently the Chief Administrative Judge at the Second Department (of the New York Appellate Division), and he was addressing one of the most pressing appellate practice issues right now: the backlog of thousands of cases awaiting oral argument (which has led to waits of nearly two years for some cases). He explained how many different factors are creating the backlog, such as ever-increasing appeals and motions being filed.
But a lack of effort on the part of judges isn’t one of them.
In fact, all of the Second Department justices are working harder than a lot of lawyers. Justice Scheinkman painted a picture of the average justice leaving the building at 5 p.m. tugging behind them litigation bags full of records and briefs. The justices will spend many of their nights and weekends–in addition to their usual days–reviewing the documents to ensure that every party gets a fair hearing of their appeal. Justice Scheinkman talked excitedly about the ability to read documents on a tablet, which means the justices no longer have to carry all that paper.
The image got my attention: judges leaving a courthouse at the end of the day, not going to happy hour or home to relax but to sit and read thousands of pages of facts and legal arguments. How unfair is that?
At that moment, I resolved to be kinder to my judges. Not by smiling more or offering to carry their bag (that would be inappropriate, of course). I resolved to do everything I can to lessen their workload. After all, judges are humans like the rest of us and want to enjoy life, not just work.
The following five tips are how I plan to do it and how you can too.
Be concise. I’ve always erred on the side of less is more in legal writing. But I can get wordy, which is mostly due to lack of properly organizing my legal arguments before writing or not leaving enough time to revise and cut unnecessary language. If there ever was a time to work on this skill, it is now. Your judges will thank you for it.
Show all of the relevant documents. Judges want to know what the documents in the record are and which ones are important for deciding the case, including the ones that favor your adversary’s position. Don’t try to be cute and ignore relevant documents by not attaching them to a motion or avoiding a citation to the record–judges will either go looking for them or spend time trying to figure it out. Make their life easier by showing them everything up front.
Be less boring. How would you feel if you had to read the same formulaic legal argument day (and night) after day (and night)? Try to make your briefs more readable and enjoyable by using literary devices, such as foreshadowing, imagery, and metaphors, or even humor.
File on time. This one is hard; I know from experience. The constant juggle of deadlines means I’m often looking for an extension. But having to make a motion for an extension gums up the court’s calendar–and it’s an underlying reason for the infamous backlog in the Second Department. So let’s unblock that writer’s block and get our briefs (and motions) filed on time.
Tell the court when the case has settled. This is one that Justice Scheinkman specificaly discussed at the CLE. When you don’t tell the court that you’ve settled, the judges waste precious time preparing to hear your case. A new rule in the Second Department requires you to notify the court as soon as a settlement is reached (meaning, an agreement has been hashed out, even if it hasn’t been performed yet). Duly noted as an easy way to follow the rules and make judges’ lives easier.