with the Rules of Civil Procedure and Rules of Evidence before you come in to try your case. TB: What are some common mistakes you see young attorneys make in your courtroom? MP: I see attorneys, and not just young attorneys, who are ill-prepared, who have no idea what their burden of proof is when they present their case. One example that comes to mind is in a probate case, if you will look at the Probate Code, it will generally spell out for you what it is that you need to do—whether it is a guardianship, an adoption, a decedent’s estate, whatever the case may be—and it’s amazing to me that there are a lot of attorneys who never even bother to open the Code before they walk in the courtroom to have a hearing. There are attorneys who don’t understand what their burden is or what they are trying to accomplish in the case they are trying. I think there is a common misconception that anyone can try a domestic relations matter. Anyone can, but you need to know what you are doing. It is different from a motion for summary judgment, or a civil dispute. I would say lack of preparation is the biggest mistake I see. Not being familiar with the latest case law is the second biggest mistake. TB: In terms of feedback that you have received after jury trials, what are some complaints or frustrations jurors have with attorneys that you can share with us? MP: One complaint is that attorneys waste juror’s time too often, and that attorneys talk over their heads instead of talking to them as peers or equals. That’s a major complaint that I’ve heard over the years—that we waste a lot of juror’s time in trying a case. It is hard for an attorney because that attorney doesn’t necessarily know what the juror is looking for a lot of times. It comes back to a focus on the part of the attorneys as to what they are seeking to achieve with a jury or a judge, and keeping that in the front of their minds throughout the process instead of getting overwhelmed by all the details and tending to spew everything out there for the jury. BB: When it comes to oral arguments in your courtroom, what do you expect from attorneys, especially in cases that may have voluminous pleadings? MP: The first rule I would urge any young lawyer to follow is to keep in mind what the word “brief” means. It means short and
concise. If you submit a 30-page brief to me, I’m going to look at it; I’m going to read it. However, I am going to be able to do a better job when looking at a three to five-page brief than I am with a 30-page brief. There are very few cases where you can’t just hone down your argument to the basic issues that you need the Court to decide or consider. I understand that with some things there are often a lot of issues to decide. I try to read any motion or brief that is submitted. I urge all attorneys to send a copy of their pleading to my office prior to the hearing on the matter. Just because you file something with the clerk’s office doesn’t necessarily mean that the judge is going to get it in a timely manner, so I encourage attorneys to make sure my law clerk has a copy well in advance so that I can consider the arguments. If you come in on the day of oral argument, and I haven’t had the chance to read your pleadings yet, I’ll tell you, and I won’t make a ruling until I’ve read the material. But it just delays my ability to make a decision for you that much longer if you don’t make sure that I have received the pleadings in advance of the hearing. Also, I don’t need attorneys in oral arguments to go back through their briefs point by point or line by line. Just go back and hit the high points. Tell me what it is that you want me to consider, the relief that you want, and I can look at the brief and apply the law. It is not necessary for attorneys to spend an hour reciting what took them several hours to prepare in a multipage brief. Attorneys should never cite a case in support of an argument or point when it in fact does not. You lose all credibility with the court when you do that. I’ve been amazed a few times at the attorneys who will cite some law that simply does not apply to the case at hand. It’s disappointing because either the attorney has misread the case, misapplied the case, or is willfully attempting to mislead the court. TB: We handle civil cases and find ourselves spending the majority of our time dealing with discovery disputes. What advice do you have for attorneys on how to deal with the discovery issues that seem to inevitably come up in bigger, more complex cases? What are you looking for from your side of the courtroom because we’ve found that it is no longer the exception to have a discovery issue; it’s really become standard practice. MP: My least favorite activity is dealing with discovery disputes. It is the biggest waste
of the court’s time. I have very little patience with discovery disputes because the rules of discovery are pretty clear. There is very little that is not discoverable. If the information sought is proprietary or confidential, then draw up a protective order. I will gladly sign it. I don’t understand most discovery disputes. A lot of discovery disputes are just the result of the parties not cooperating, not willingly giving up information everyone knows is discoverable. I will grant a request for attorney’s fees and costs sometimes in these disputes, and if there is a willful failure to comply with an order to compel discovery, I’ll strike answers, or dismiss complaints. BB: So what advice can you offer to attorneys who find themselves in the midst of a discovery dispute? MP: I encourage everyone to keep fighting for everything to which they believe they are entitled—whether you are plaintiff’s counsel or defense counsel. The problems with dealing with discovery—I think it is a game that some people play. I just don’t have a lot of patience for these types of disputes. TB: How has the legal profession, based on your view, changed or evolved since you began practicing law, in terms of the style or manner in which attorneys interact with one another? MP: I believe that the practice of law has become more of a business and less of a profession. I can’t say that all the changes I’ve seen have been good. There is much less good will, trust, and professionalism amongst lawyers than there was 30 years ago. TB: How do we get back to the way practicing law used to be? MP: A lot of people have the perception that in order to be a successful attorney, you have to be a go-for-the-throat, no-holdsbarred, win-at-all-costs type of attorney, and I think that’s wrong. It’s a small world in which we as attorneys and judges live. Attorneys need to remember that what goes around comes around. A little good faith and fair dealing can go a long way. Tom Buchanan is the Managing Member and Beth Burgess is an Associate Attorney at the Law Office of Thomas G. Buchanan in Little Rock, where their primary focus is on personal injury litigation for plaintiffs. ■. 25