Abridged from a presentation to the 18th Annual Bankruptcy Conference November 19, 1999, by the Honorable John C. Akard, Judge, U. S. Bankruptcy Court N. D. Tex.
I will retire at the expiration of my term on April 3, 2000. From this perspective, I offer these observations which, hopefully, will be of benefit to you in your law practice.
As lawyers, we should conduct our practices as a service to our clients. We should heed this warning: "The point is that as lawyers, we are in a service industry and that serving our clients must always take priority over serving ourselves." James E. Brill, "The Law of Unintended Consequences," 62 TEX. BAR J. at 679-81. Truer words were never spoken. Likewise, judges need to conduct their courts as a service to the litigants, the lawyers, and the public.
Credibility is your greatest asset. Credibility with the court is the most important thing a lawyer possesses. Once lost, it is almost impossible to regain. No client, no case is worth the loss of your credibility.
Know the Judge. Each judge has developed certain policies and procedures which are fitted to the circumstances of the docket, the local legal culture, and the things the judge thinks are important. Each judge thinks his or her own policies and procedures are the greatest thing since sliced bread. Arguing against those policies and procedures is a losing cause. This is why you always need local counsel. When you practice in another district, always strictly comply with the Local Rules.
Do not tell the Clerks anything you do not want the Judge to hear. This applies not only to law clerks, but to people in the Clerk's office as well. If you are rude, demanding, or untruthful to people in the Clerk's office, it gets to the Judge quickly.
Sloppy practice is just sloppy practice. This problem affects large firms as well as solo practitioners and small firms. One problem is that large firms do not spend the time necessary to train their young lawyers. Sometimes the "big" lawyers have problems as well. One "big" lawyer wrote me a letter in which he disclosed part of ongoing settlement negotiations. I wrote a letter reminding him of his error and sent a copy to opposing counsel.
There are three forms of successful preparation in law practice. The first is to prepare yourself on the facts. Visit with your client and get all the facts. This does not mean going on a fishing expedition and deposing everybody in the Western Hemisphere. A lawyer's skill lies in knowing which facts are critical and being able to apply the law to them. In most cases, there are one or two critical facts on which your investigation and discovery should concentrate.
The second is to prepare yourself on the law. Make sure you thoroughly understand the law applicable to the facts. Make sure that you can prove each element of the statute involved. It is embarrassing to concentrate on one element, only to lose because you failed to present any evidence on another. You do not want to be the recipient of the following comment in an opinion: "Defendant cites scant law to support any of its contentions. Generally the court is not obligated to research and construct arguments when a party is represented by counsel." John v. Barron, 897 F.2d 1387, 1393 (7th Cir. 1990).
The third is to prepare your client. Review the case thoroughly with your client. Literally cross-examine your client. Ask your client what the other party will say so you can anticipate the other party's arguments and build defenses for them. It also helps your clients to see weaknesses in their case and makes them more interested in settlement. Never interview your client on the stand. You will always get an answer you don't like and trying to "patch it up" only makes matters worse.
Tell the whole story. This is always important, but it is particularly vital in two instances. Lawyers know their case and know what they are trying to achieve. However, in preparing motions, they slap something together or instruct a paralegal to prepare the pleading without explaining why the relief requested is necessary. The result is a generic motion, for which the result is a generic denial. At trial, there are many background facts known to the parties that are not known to the court. Assuming the court already knows facts not in evidence can be disastrous. Also, at the second or third hearing in a case between the same parties, do not assume that the court remembers prior testimony.
Watch what you ask for. You may get it!