Monday, June 16, 2014

Back to School, or Just "SAY IT!"

The movie Back to School, starring Rodney Dangerfield came out in 1986. It essentially deals with the protagonist's (Dangerfield) decision to attend college to be closer to his less than enthusiastic son. Professor Terguson is played by the loud and often rude comedian Sam Kineson. His stand-up routine catch phrase was "say it," which he would scream at the audience. 

This catch phrase "say it" was picked up in the movie to great effect. In one scene, Professor Terguson screams in Dangerfield's face "say it!, say it!" Dangerfield responds with what he thinks Terguson may want in terms of some historical event, and Professor Terguson calms down and compliments him on the answer. Dangerfield turns to his class mates and sarcastically says "Good teacher. He really seems to care. About what I have no idea."

I have been reminded of the scene recently with some pleadings. So much in the practice of law could be simpler if you just "say it." Of course, I am not advocating that someone get up your face like the comic Profession Turguson. Another of Kineson's catch phrases can be editorialized thus "I don't condone frustration, but I understand it." There is frustration on both sides of the pleading process, I hear it from attorneys and from judges. 

Attorneys lament that their motions are misunderstood, under appreciated, and ultimately unsuccessful. Judges lament that the motions they receive are rambling, unclear, and insufficient for making a decision.

Both of these can be solved. 

One great example is the motion or stipulation for attorneys fees. I hear from lawyers when these are denied. Usually, the conversation begins with some explanation that there has been a denial and the attorney cannot comprehend why. After looking through the paperwork, I usually identify a statement that I think might have changed that outcome. 

Believe it or not, there are instances in which attorneys have sought approval of fees from an injured worker because they represented the Claimant. I know that sounds ok, and representing someone is usually why attorneys are paid. But the mere fact of representation is not necessarily enough to justify payment of a fee under the statutory construct we work within. 

There has to be some action (attorney) that garners a reaction (payment or provision, that is "obtention of benefits"). It says so in the statute. When drafting the motion or stipulation, why not "say it," that is track the statutory language and simply say this benefit was not provided or was denied, attorney name filed a petition (wrote a letter, made a phone call, etc.) and the denial was rescinded and/or the benefit was provided. Then add for effect "the attorney action (insert) resulted in the provision of (insert benefit) to the injured worker."

This does not have to make for a long motion. That can be said in a simple, straightforward and quick manner. This explains why a fee is due. Sure, it takes longer than simply, "I represented this person and so a fee is due," but it is also more likely to provide the judge with sufficient information to make a decision. Just "SAY IT!"

Another example that occurs somewhat frequently is the continuance motion. The statutory language is "the reason for requesting the continuance arises from circumstances beyond the party's control." I am surprised at how often I see a continuance motion that does not track or recite that statutory language. Generally, I see these when an attorney calls me after their motion has been denied. These calls are often angry and the target of the anger is usually the judge, as in "how could she/he not grant this?"

Why verbally dance around the point? The point is that something happened, that something was beyond control, and that something justifies a continuance. "SAY IT!" Why not just say, "this  (insert event/occurrence) happened, it was beyond the moving party's control because . . ." This can be simple, clear and short. Hint, if you cannot articulate how it was beyond your control, there is a good chance the judge will not be any more able to infer it from the absence of description or explanation. 

When seeking relief, one of my early mentors taught me, it is helpful to cite the authority that supports the judge siding with you. Provide the statute or the rule. When citing a rule, it is helpful to make it the right one. I still see motions (old forms) that cite the pre-DOAH procedural rules. Those have been revoked by the Court, they are not applicable, they are a nullity (this has been true for over ten years). What message are you sending when you cite defunct rules? 

After citing the statute or rule, follow and recite the actual language. State the element "beyond control" and then state how your situation fits that language. State the action of counsel and the resulting benefit obtained. There is no need for flowery legalese, or two-paragraph descriptions. Too much verbiage and large complex words can confuse and distract more than they help. Keep it simple. Tell the judge the criteria from the rule or statute and then simply state how your situation meets it.

When you meander, wander, and ramble, you frustrate than serve your purpose. When your exposition and enunciation of justification and illumination are contumacious and extensive they may dissimulate or dissemble, confuse or confound and one may conclude that you are prevaricating. Instead, just "SAY IT!"

With any luck, the Judge will do the same, and you won't find yourself saying "Good judge. She/He really seems to care. About what I have no idea."

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