by David Ackerman and Dana Foster
Published November 2013
Dear Professionalism Committee,
I was recently involved in what I considered to be an unprofessional encounter and seek your advice. I was at the Palm Beach Courthouse outside of the Judge’s courtroom waiting for a hearing. I sat on the bench with opposing counsel for about 15 minutes before the hearing began. When opposing counsel began her argument, she handed me, for the first time, cases on which she planned to rely in support of her argument. I was distracted and seething because I did not have an opportunity to read the cases before the hearing especially when there was abundant time for me to do so, while we both sat there waiting for the hearing to begin. What should I do next time? Am I wrong to feel upset about this?
Dear Livid Lawyer,
Your opponent violated at least one principle of professionalism, and did not display good advocacy. First, your opponent violated goal 2.6 of the Ideals and Goals of Professionalism, published by The Florida Bar, which provides that authorities should be provided to opposing counsel “sufficiently in advance of any related hearing to assure both the Court and opposing counsel have a reasonable opportunity to review it before hand.” Section IV.2 of the PBC Standards of Professional Courtesy advises counsel to deliver authorities to opposing counsel at or before the time they are submitted to the Court (this section was directed at the practice of some lawyers who would hand deliver a memorandum to the Court and drop it in the mail to opposing counsel, so that the unsuspecting lawyer would show up at the hearing and learn that the Judge had read the hand delivered memorandum which had yet to be delivered by the postal service).
This principle reminds us of the point of having a hearing – to allow the Court to meaningfully understand the relevant law, analyze how it applies to the facts presented and make a sustainable decision. Attorneys best assist the Court in that process by providing both the Court and opposing counsel with ample time to review the authorities before the hearing. This preparation promotes the ability to have a well-informed discussion of the merits of the motion. Your opponent chose gamesmanship over advocacy and assistance to the Court. When provided last minute, neither the Court nor counsel are in a position to give much thought to those authorities. The practice will surely irritate the Court because it will not be able to decide the motion efficiently.
Along these lines, Section D.2 of The Florida Bar guidelines for professional conduct requires papers, including case law, not to be served at the time of the court appearance “unless the proponent agrees to give opposing counsel reasonable time following the court appearance in which to respond to the papers.” This principle would apply if, for some reason, something new occurred at the hearing where it then became appropriate to discuss authorities not previously considered relevant. Good advocates, however, put the Court in the very best position to make a reasoned decision at the time of the hearing or shortly thereafter. It is simply bad manners and bad strategy to keep the applicable law from the Court and counsel until the last minute.
So, to answer your question, set a good example. Next time, send your authorities to opposing counsel well before the hearing and request your opponent to do the same. That generally works. If not, you should ask the Court for a reasonable period of time to review whatever of authorities were provided at the hearing, under guidelines Section D.2.
You may want to include in your letter to counsel a copy of The Florida Bar Guidelines for Professional Conduct, Section D.2., which requires papers, including caselaw, not to be served at court appearances “unless the proponent agrees to give opposing counsel reasonable time following the court appearance in which to respond to the papers;” or The Ideals and Goals of Professionalism, also published by The Florida Bar, which provides in Goal 2.6 that authorities should be provided to opposing counsel “sufficiently in advance of any related hearing to assure both the Court and opposing counsel have a reasonable opportunity to review it beforehand.”
In conclusion, we think a good advocate sets the tone for how litigation will proceed by being up front and prepared for hearings. That preparation should include notifying counsel and the Court of the authorities on which you will rely well before the hearing. If your case strategy depends on some element of surprise or gamesmanship, that is not a very good strategy.
The Professionalism Committee
* Mr. Ackerman is a shareholder with the law firm of Ackerman, Link & Sartory, P.A.
** Ms. Foster is an associate with the law firm of Ackerman, Link & Sartory, P.A.