From the Multnomah Lawyer: Tips from the Bench – Attention to Detail
In today’s world of word processing programs and cut-and-paste technology, brief writing is easier than it has ever been. As caseloads increase, being able to recycle complex legal arguments with the push of a button is a godsend to busy prosecutors, defense counsel and civil litigators. Unfortunately, along with that ease has come a noticeable corresponding decline in the quality of the legal writing and the attention to detail in the documents submitted to the court.
We work in a professional field which, maybe more than any other non-scientific profession, requires precision in the language used and compliance with the rules that govern proceedings. The absence of precise language can have an enormous impact on the lives of the litigants appearing in our courts. Whether it’s the misuse of a word such as “exclusive” versus “inclusive” when making an offer of judgment in a civil matter, reference to a completely irrelevant statute or section of a relevant statute, or misciting the authority relied upon in your brief, most such errors are attributable to a lack of care and caution, or a failure to take the necessary time to proofread before hitting the “file” button.
As judges, my colleagues and I rely on the attorneys appearing before us to accurately inform us of the issues in their case, identify the evidence and authority that supports their position, and provide us with concise, coherent written materials when needed or required. While we understand that heavy caseloads and strict deadlines put pressure on practitioners, word processing programs cannot and do not replace personal research, review of the relevant Uniform Trial Court Rules, and good old-fashioned proofreading.
For example, when filing a motion to suppress evidence, UTCR 4.060 requires the motion (a) to “cite any constitutional provision, statute, rule, case, or other authority upon which it is based,” and (b) to include the moving party’s brief, “which must sufficiently apprise the court and the adverse party of the arguments relied upon.” “Good practice requires, at the very least, that the motion or demurrer set forth clearly and succinctly what is requested, the reason why the request should be granted, and a statement of points and authorities in support of the request.” Barbooks, Criminal Motion Practice and Motions to Suppress; State v. Miller, 269 Or 328, 334-35 (1974); State v. Johnson, 16 Or App 560 (1974); ORS 135.610(2). Very often, the motions we receive are regurgitations of prior motions filed without complying with UTCR 4.060(1)(b). In some cases, the motions cite statutes and/or legal theories that have nothing to do with the case at hand and almost all are completely devoid of the facts on which the motion is based. The result is an unnecessarily long delay the day of trial while the court and the parties try to discern the true basis for the motion and the pertinent facts in play. Worst-case scenario: by filing an inadequate motion, counsel has not preserved the constitutional issue for appeal. State v. Pope, 150 Or App 457, 463 (1997).
Similarly, with respect to requested jury instructions, UTCR 6.060(3) requires that “if the uniform instruction contains blanks or alternative choices, the appropriate material to complete the instruction must be supplied in the request.” With very few exceptions, most proposed jury instructions that I receive from parties on both sides of the case fail to comply with UTCR 6.060(3). It takes very little time to provide the required information within the instruction and saves the court time hashing out the instructions in the courtroom.
When filing excerpts of deposition or trial court transcripts as exhibits supporting a motion, UTCR 2.010(9)(c) requires that the exhibit “be limited to only material, including and excerpt from another document, that is directly and specifically related to the subject of, and referred to in the [motion].” Too often we receive lengthy exhibits such as deposition transcripts, scientific papers, cases, and research documents without any indication from the party filing the document as to which lines or sections are pertinent to the issues to be decided by the court. Take the time to highlight or underline those sections that matter, and direct us to what you want us to read. Even if you do not win your motion, you will win the gratitude of your judge.
Remember, proofreading is your friend. No matter how well you comply with the ORCP, UTCR’s and SLR’s, if your brief is full of typos, refers to the wrong party, confuses the facts, or includes an unedited section from another earlier version of the brief filed in another case, you lose credibility with opposing counsel and with the court. I can recall when I was in practice reading a brief filed by a colleague years ago in a sexual harassment case. This very good lawyer had spent 24 hours straight finishing up a brief in response to a lengthy motion for summary judgment. On her last and final draft, she asked me to proofread her arguments. As I read the brief, I came across a reference to the “important pubic policy” at play in the case. I had to read the sentence two or three times to confirm that, indeed, that is what it said. We had a good laugh, she added the missing “l,” and she was saved the embarrassment of opposing counsel (and perhaps the court) never letting her hear the end of it. I also once received a letter from a potential client detailing in multiple sentences how “obliviously” certain things were occurring in his employment. (He apparently found my colleague’s missing “l” and added it in.)
As a judge, I have seen (and in my time made) several such mistakes, including: misnamed parties, randomly switching gender identifiers when referring to a party or witness, misciting case names or numbers, and fragmented sentences left in place after a cut-and-paste. Although sometimes they provide much needed comic relief at the filer’s expense, mostly they indicate the failure to slow down, take your time, and review your work. We belong to a profession with professional standards and expectations. Let’s live up to them.
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