by Richard Prior
Staff Writer
The rules all seem to fall into the “it goes without saying” category. Too obvious to warrant attention.
But when lawyers run afoul of the “reasonable expectations” judges have of them, they certainly get plenty of attention.
Violators are in the minority, Senior Judge Wayne Alley told the Jacksonville chapter of the Federal Bar Association last week. But there are enough of them around to warrant a speech peppered with cautionary tales and pointed anecdotes.
The principal duties of every lawyer, Alley said, are competence, compliance, respect and “elucidation,” or education.
Attorneys owe competence to their clients as well as to the court, he said.
“The exceptions seem to occur when a lawyer is not sufficiently competent to recognize his or her own incompetence. When I see this, and I repeat this is infrequent, I’m hit with the decision whether to help out the floundering counsel or not.
“In a way, the issue is whether the other side has entitlement to have the advantage of the adversary’s deficiencies. I don’t know. But I do know that, when this situation arises, I always feel awful no matter what I do or decide not to do.”
Alley, the senior U.S. district judge for the Western District of Oklahoma, is a retired Army brigadier general. He was making his eighth trip to Jacksonville.
Lawyers inept in “people skills” outnumber those who lack preparation and forensic competence, he said.
“At trial,” said Alley, “this is manifest by undue hectoring of witnesses, haughtiness, rudeness, patent insincerity, obvious currying and the like.
“Not that I’m entirely against currying favor,” he added, to a round of laughter.
Lawyers are also expected to comply with federal and local rules, with specific orders and with trial rulings.
“It’s easy to be in compliance and, if not, unrealistic to expect judges to blow it off,” said Alley.
The judge told his audience he had “little to say” about respect, other than to distinguish it from the other traits.
“Counsel must actually be competent . . . and be in compliance,” he said. “But counsel doesn’t have to be respectful. He only has to act as if he is.”
Education, or elucidation, Alley said, may be found in “briefs that are readable, argument that is understandable and examination that comes to the point.”
For its part, the bar has reasonable expectations of judges, he said.
“An often-quoted passage attributed to Socrates is, ‘Four things belong to a judge: to hear courteously, to answer wisely, to consider soberly and to decide impartially.”
Alley elaborated little on the first requirement and suggested answering wisely is “probably an exhortation toward minimalism.’
“And I can assure you,” he said, “that most judges are sober most of the time.”
While suggesting there is “some room at court for humor,” he quickly added, “too much judicial humor is probably deleterious, especially in a jury trial.”
The fourth guideline he dispensed with as quickly as the first.
“If a judge can’t decide impartially,” Alley said, “he probably ought to be in another business.”
Though the business of the law is serious, he said, “I hope the practice can be fun. It’s important to act with civility whether you feel it or not. And it’s important for us to be happy in our profession.
“If you’re experiencing difficulty because opposing counseling is behaving like a jerk, there’s no point in trying to retaliate by descending to the same level.
“He’ll only out-jerk you.”