Never Underestimate The Opposition Attorney

By Michael Reiter, Attorney at Law

When I was a teenager, I attended a program in Washington D.C. in the law.  Though I had wanted to be an attorney for about seven years at that point, I had actually applied to be in a program regarding national politics, but that was full, so I went to the legal program instead.

The program was very interesting.  We visited a juvenile correction facility, we went to the local District of Columbia courts, we visited the National Rifle Association and the American Civil Liberties Union, and though I cannot remember exactly because I’ve been a number of times, the Supreme Court and Congress. However, I recall in particular one visit to a public defender in the local courts.  On each visit, someone gave a presentation and the students were able to interact with the presenter.

The attorney with the public defender’s office made a great impression on me. This attorney had the passion and zeal of a true believer.  He said that people asked how he could sleep at night defending criminals.   He said “like a baby.”   He made one student, whose uncle was murdered, cry. He spit venom on many occasions, most memorably against non-public defender appointed attorneys whom he labeled as “soup-on-their-tie lawyers.”

Soup-on-their-tie lawyers.  Meaning, a slovenly attorney, from a ninth-tier law school, who barely passed the bar exam, of questionable ethics and practices, who was never prepared, always took the short cut.  The image of that lawyer is burnt into my brain.  At one of my previous employers, this kind of attorney was referred to as a “generic discipline-able attorney.”

As I grow older, however, let me caution newer attorneys not to underestimate the opposition attorney.  As a society, we have a tendency to overemphasize conventional wisdom.  The person wearing glasses is intelligent. Or on the other side of the coin, someone who looks like they slept in their suit (or spilled soup on their tie) is incompetent.

As a lawyer, you should not underestimate the opposition attorney, even if they have made a few mistakes along the way.  Even the worst attorney in the world sometimes stumbles into a great case.  Remember what my Theory of Knowledge teacher taught me: even a broken clock is right twice a day.  Do not be lulled into a false sense of confidence because of who is opposing you.  You still need to do your homework and do your job.  Particularly if you are a civil defense lawyer. You usually do not get to pick your cases.  The plaintiff’s lawyer usually does get to pick their cases.  Sometimes the case is better than you initially think.  Thinking a good case will go away because of the opposition attorney is an easily avoidable mistake.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

A: 300 E. State St., Suite 517
Redlands, CA 92373-5235
T: (909) 296-6708

Always Check the Pocket Part: Doing Your Due Diligence In Law

By Michael Reiter, Attorney at Law

The first week of law school, if not the first day, my Legal Research and Writing instructor at Santa Clara University School of Law JoLi Schunk, taught me to always check the pocket part. Bound legal publications, such as the United States Code Annotated consist of a bound book with a pocket in the back. The pocket contains the pocket part. The pocket part is a soft bound packet, varying in thickness, that has updates from the bound version. “Always check the pocket part” means, for example, that if you found a statute that supports your case, make sure that it is today’s black letter law, and it was not repealed by later legislation seen in the pocket part.

Today, most physical law libraries are getting smaller, so much research is done using online sources that are constantly updated. “Always check the pocket part” means that you cannot rely on others in quoting the law. For example, do not rely on a secondary source, or a case squib to tell you about a case. Go directly to the case. Go to a primary source.

This truism was illustrated in the San Bernardino City Attorney’s race. Challenger David McKenna erroneously accused the accuser of accepting money related to an ongoing corruption scandal in San Bernardino County, when in fact, the money was used to oppose the City Attorney James Penman  in the 2007 City Attorney’s race. According to the news reports, David McKenna based this false accusation upon a newspaper report in the Press-Enterprise that was in error. The original campaign filing showed the correct information (that the money from the PAC was used to support City Attorney Penman’s opponent, Marianne Milligan ).

According to the online edition of the San Bernardino Sun posted today:

McKenna said he did his due diligence, discovered the error and called Penman to apologize and let him know that he would send another email saying the previous message was wrong.

Read more:

“Always check the pocket part” means doing the due diligence before you quote an outdated statute in a pleading, or cite checking a citation before filing your opposition to a Motion for Summary Judgment, or in the case of the challenger to the City Attorney’s office, looking at an original document instead of quoting a secondary source like an out-of-town, out-of-county newspaper.

It’s also a matter of taking care of little details. An attorney I worked for repeated this proverb, a copy of which I found online:

For want of a nail the shoe was lost.
For want of a shoe the horse was lost.
For want of a horse the rider was lost.
For want of a rider the battle was lost.
For want of a battle the kingdom was lost.
And all for the want of a horseshoe nail.

Everyone makes mistakes, sometimes in the practice of law, there is not as much time as we would like. However, if you, as the self-represented, as an attorney, or anyone for whom words are important, do your due diligence and always check the pocket part, you’ll be much better off.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

A: 300 E. State St. Suite 517

Redlands CA 92373-5235
T: (909) 708-6055