If there is one person a lawyer doesn’t want to be in a U.S. Bankruptcy Court case, it would be “that guy.”
“That guy” is the lawyer who doesn’t prepare for courtroom appearances; doesn’t show respect for the court or court administration, clients or opposing counsel; fires off antagonizing or disrespectful emails, texts and letters; overreacts in court or doesn’t control the client; doesn’t respond immediately to telephone calls from the court; and generally is discourteous.
“A lot of this stuff is ‘don’t be that guy,’” said Ellsworth Summers, president of the Jacksonville Bankruptcy Bar Association and a shareholder in the Rogers Towers firm.
Summers spoke May 15 at the JBBA Professionalism Bootcamp at the Bryan Simpson U.S. Courthouse.
He was joined on a panel discussion by U.S. Bankruptcy Court Judges Paul Glenn and Jerry Funk as well as lawyer Jerrett McConnell, a director and past president of the association and a shareholder of the Friedline & McConnell firm.
The event is held annually.
“This is a professionalism boot camp,” Summers said. “We all have bad days. We all have moments of professional weakness.”
He assured the 30 members who attended that the panel was there to help. “We really are a really decent Bar,” he said to the group.
Glenn and Funk offered their recommendations and pet peeves.
• Show respect. “Respect each other and respect the court,” Funk said. “You have limited hours on this earth,” he said. If a lawyer does not respect another person’s time, “you’ve stolen those hours.”
• Be prepared. Funk said “it’s unbelievably obvious” when a lawyer is not prepared. “The first thing you can tell is who’s prepared,” Glenn said. “It’s immediately apparent to us.”
• Communicate. Funk said to communicate with the U.S. Bankruptcy Court trustee, opposing counsel, the court and the clerk’s office. “A lot of time it will save you a lot of grief and aggravation,” he said.
• Appear at hearings. “It’s not too much to ask,” Funk said. “You just can’t not show up.”
• Analyze. “Analyze from the perspective of the judge,” Glenn said. Present the facts and the law that applies and why.
• Arguments. “Make your best arguments first,” Glenn said. “Address the issues directly. The nonissues are not issues,” he said.
Glenn summarized his suggestions: Be candid and be professional, be reasonable, be prepared, and analyze.
Summers emphasized to the lawyers that Glenn and Funk, who are the two bankruptcy judges who sit in the U.S. Middle District of Florida Jacksonville Division, are respectful and generous with their time.
“Salute the rank,” Summers said. “You always have to treat the judge with respect.”
Summers and McConnell offered suggestions, first addressing correspondence between lawyers on a case.
When sending a text, email or letter, lawyers should ask themselves: “Will this appear before these two guys? Will it make its way into a pleading?” Summers said, referring to the judges.
“If you have a bad day and fire something off that you shouldn’t have, these guys will see it,” he said.
Summers said to cool off before sending correspondence if it’s heated. “Set your alarm. Reread it. Is that what you really wanted to say? Or have somebody in the office read it.”
Summers and McConnell offered suggestions about correspondence and communication with opposing counsel:
• Texts. “No one should ever be texting about the law,” Summers said. “Stay away from the text.”
• Email. “Email to opposing counsel should never use an exclamation point or points or be in all caps,” McConnell said. “As a general rule, if you’re in a tough situation, never send an email,” Summers said.
• Courtesy. “In all correspondence, always be courteous. Show grace. Your courtesy could change the dynamic,” Summers said.
• Telephone calls. A lot can happen in a five-minute call and a lot more can happen in a 30-minute call. Take notes so there is a record of what was said.
• Face-to-face meetings. Take notes of who said what; recap what was said; make a to-do list of what was discussed; and send a follow-up email to make sure everyone agrees on what took place.
• Rude opposing counsel. “You show your worth, your mettle, by killing them with kindness,” Summers said.
Summers and McConnell also offered suggestions about courtroom etiquette.
McConnell suggested lawyers “learn from the mistakes of others.”
“Watch the judges. Watch how they treat other attorneys. Watch what words set them off. Watch how they rule,” he said.
• Judges. “Stand up and address the judges. Show them respect,” McConnell said. “Don’t interrupt our judges. Let them finish what they’re trying to tell you,” he said. Respond with yes sir, no sir, your honor, he said.
• Opposing counsel. If you have an issue, talk with opposing counsel before the proceeding, McConnell said. “Introduce yourself to opposing counsel. Put a face to the voice, to the email.” Also, don’t interrupt them or try to shout them down. Be candid with opposing counsel and with the court.
• Court personnel. Court administrators have a job to do. “Treat them with respect,” McConnell said.
• Communication. “When you are making arguments, speak up clearly. Be succinct,” McConnell said. “Don’t belabor your point.”
• Counsel table. “Keep your emotions to yourself. Keep yourself and your client under control. Don’t turn your back to the court,” McConnell said. And don’t swing your chair around. “Listen to your opposing counsel,” Funk added. “You could miss something relevant to an argument.”
• Witnesses. “Prepare your witnesses. Spend time with them. Make sure they understand what the case is all about, make sure they understand what to expect in the courtroom, make sure you control your client witness,” McConnell said.
• Witnesses of opposing counsel. Don’t ask questions where you don’t know the answer already.
• Clients. “Remember your primary duty is to your client,” Funk said. McConnell said lawyers must be honest with clients and create honest expectations, not overselling a position. Make sure clients understand the process and know when they need to be in court and when they don’t.
• Difficult clients. McConnell said lawyers must control their clients. “If you can’t get along with that client, you may need to send him down the road,” he said. “There is no client worth (losing) your reputation.”
There was another suggestion that Summers emphasized: 301.
That number – 301 – is the telephone prefix of the bankruptcy court administration. Summers was direct:
“You see 301, answer the phone,” he said. “Chances are they have a very specific question. Answer the phone or return (the call) as soon as you get it. Do not under any circumstance let them hang.
“How simple is it to return that call? I cannot imagine any excuse to not call back. They are trying to be helpful,” Summers said.
McConnell said if the court calls about an issue, “make the correction so they don’t have to call you again.”
“If you treat the clerk’s office with respect, you’ve established that rapport. It gets you a long way,” he said.
“You want to be on the ‘yes’ list,” Summers said.
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