Thursday, September 18, 2014

Best Practices: What to do with the Unprepared Attorney

April 13, 2011 by Hon. Marianne Vorhees

[Editor's Note: This is the third in a series of four articles from the Ethics and Professionalism Committee of the Indiana Judicial Conference. The author thanks and acknowledges the contributions of those who attended the session at the September, 2010 Judicial Conference in Indianapolis and contributed to the “Best Practices” suggestions related here.]

One way judges can increase courtroom productivity is to assure that attorneys are prepared when they come into court. Facing unprepared attorneys is a concern for judges in courts all across the state. Many times judges reserve court time only to discover that the attorneys are not prepared and request a last-minute continuance. Sometimes when attorneys begin trying the case, the judge realizes that one (or both) does not understand the burden of proof or what standard the judge will use to make a finding. That is when the judge wonders if the hearing is going to be a waste of time and effort.

If a case is scheduled for one-half day or more, there should be a pre-trial conference date for the attorneys only to meet with the judge to discuss the case. At that meeting a judge should insist that the attorneys understand the burden of proof, which party bears the burden, and what relief the parties are seeking. The attorneys should know all important recent developments in that particular area of the law, including recent cases or statutory changes.

For example, if an attorney asks for hearing on behalf of a custodial parent seeking to relocate with a child, the court could hold a very productive pre-trial conference. There have been recent statutory changes that may be unknown to parents and even to some attorneys, especially those who don’t practice family law on a regular basis. There are also a few important cases that a judge could bring to the attention of trial counsel.

If attorneys seem uncertain as to the law, a judge should require Proposed Findings of Fact and Conclusions of Law before the hearing. A judge should direct the attorneys to include relevant citations to statutes, cases, and other authority that apply to the issues being litigated. This will force the attorneys to do their research before trying the case.

Some judges require attorneys to file Proposed Findings of Fact before every hearing of any significant length, even if they are experienced and knowledgeable attorneys. This will ensure that the attorneys are prepared and will use the allocated court time more efficiently.

What should you do if you are trying a case and one attorney is prepared and the other is not? As judge, you probably cannot do anything to protect the party represented by the unprepared attorney. The person who selected the attorney will have to suffer the consequences of choosing counsel unwisely. However, if the attorney’s lack of preparation is so routine that it begins to look like serial neglect of clients’ cases, the judge may want to consider reporting his or her observations to the Disciplinary Commission.


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