What is wrong with some lawyers (many lawyer) (maybe most lawyers). We are suppose to be the epitome of argument and persuasion, and we just lack clarity. Argument is not the opposite of clarity. Clarity should be the basis for any good argument.
Now, do not get me wrong. I will often put myself in that group of lawyers that lack clarity. We do not have to dance around every issue and ever question. Let me give you a couple of examples.
I was on the phone the other day with opposing counsel, I will call "Bob", following up on settlement negotiations on a small case. The Defendant had previously offered $2,000.00 to resolve the matter and I countered at $4,000.00. The cuss never had the resolve to call or email me back as promised, so I called him. The conversation went something like this:
"Bob, I did not get a call back from you on this. Where do we stand on the settlement offer".
"Presently, all I have authority for is $2,000.00".
"What does that mean, Bob?"
"What do I mean? I do not know how I can be more clear".
"Well, your client's offer was at $2,000.00. We countered at $4,000.00. Did you even talk to your client?"
"Of course I did, why would you suggest I didn't?"
"Because you have not told me anything to suggest otherwise."
"I was perfectly clear."
"Then it must be me. We issued a counter of $4,000.00 to your client's previous offer of $2,000.00. Now you talk in terms of your 'present authority' at $2,000.00. I have known for a week that you have authority of $2,000.00. Common courtesy would suggest your answer would be your client accepts our offer, rejects our offer, or counters our offer. Based upon one of these three options, what does your client wish to do?"
"I do not know how I can be more clear to you. The only authority I have presently is $2,000.00".
"Bob, this is a small case and is not worth this kind of gamesmanship. What does 'I have present authority' of the same amount as the previous offer by your client and repudiated by our counter tell me?"
"It tell you whatever it tells you."
"Really Bob, we are going to be jerky over a small case like this were both of us are charging over $260.00 an hour to engage in word games and try to see how ambiguous you can be."
"I cannot be more clear than what I have been. I don't know what more you want."
"Is the $2,000.00 a repudiation of our counteroffer?"
"Are you expecting a phone call from your client or further discussions with your client about our counter?"
"I am not going to reveal to you anything about my conversations with my client".
"I was not asking you to do that. I am trying to find out if you are saying you have 'present authority' because your client is still considering the counter and needs more time, or you still need further authorization from your client before we can continue discussing this matter?."
"So, your client has rejected our counteroffer?"
So, your client has accepted our counteroffer?"
So, your client wants to make its own counteroffer?"
"So, your client is again offering the prior repudiated offer of $2,000.00?"
"Are you just trying to be difficult?"
"I do not know how I can be more clear."
"So, your client is offering $2,000.00 and only $2,000.00?"
"No. All I have present authority to allow is $2,000.00"
"Bob, we rejected the $2,000.00 a week ago. We countered at $4,000.00. You said you would call me back the next day. You did not. So, I take it your client is rejecting our counteroffer, is not offering any new amount of money other than the $2,000.00, which we already rejected. Is that what we have here?"
"No. I said none of that. I did not mean none of that. I was perfectly clear as to what I told you."
"Right. I got it. You are crystal clear."
"I did not say I was crystal anything."
"Is your client still considering our counter, and until they have made a final decision you are sticking with your present authority of $2,000.00?"
"So, your client has rejected our offer?"
"I already told you the answer to that is no."
"Thanks Bob for being so clear on that. You do realize this is a federal fee-shifting case?"
"Good. That was a clear answer and concise answer. I know some people like to see themselves as master negotiators, and just cannot help themselves from engaging in such gamesmanship. I do not know how to communicate informally with anybody that engages in these games. It is like talking to the wall, except less productive. I am going to make a note of this but note that your client has rejected our offer and has made no counter, as you stated. And, if that is not true, then we are withdrawing our offer. We will just move the case forward and see if your client can any more clear at trial."
This is a less exact example, and more of a rant from an attorney that does not like to cool his heals all day why lawyers appearing in Court in front of him blather on and on and on about matters and gripes that do not matter.
Here is what happens repeatedly at management meetings and scheduling conferences. The Judge calls the case. Appearances are made. The Judge asks a direct and pointed question, for whatever reason, and the attorneys will not answer it. The response will usually start off with, "Well Judge ..." Then the attorneys launch into their arguments as if the Court has not read or reviewed anything.
Here is a brief example of what I witnessed some time ago while waiting for my case to be called. The Judge enters the courtroom, the attorneys make their announcements and the Court begins ...
"Gentlemen, I've read the pleadings. I understand that this case is about the violation of the Court's order ..."
"Alleged violation, your honor, we do not agree there has been a violation."
"Yes, thank you counsel. My question in regard to the Complaint and the Answer is this. The Plaintiff's pleadings contain a good number of facts that seem to come from the file maintained by the Court on this matter. The Defendant has denied almost all of those facts. Are these not objective facts, did the Plaintiff get dates wrong, or why should these facts be denied?
"Judge", the Defendant's counsel responded, "my client does not agree that it willfully violated the injunction issued by this Court."
"I understand that Counsel, but shouldn't I be the judge of that based upon the objective facts of the case."
"But the problem is that that my client did not violate the Court's order," said the Defense counsel.
"I understand your position counsel, by my question was, whether your client violated the Court's order or not, why can your client not admit to any of the objective facts contained in the Court's file? "
In response the Defense attorneys started down the road of pre-bankruptcy issues related to their dreadful treatment by the debtor, which had no relevance to the issue before the Court.
Worse, when the Judge then turned his attention to the Plaintiff's counsel with the exact same question, the Plaintiff's counsel ignored the question and started responding to Defense's counsel's pre-bankruptcy allegations.
The hearing went on like this for nearly 20 minutes until the Court ordered both of them to the jury room to review the objective facts and see what they may be able to agree upon.
United States Bankruptcy Judge Jeff Bohm gave a talk to the local bankruptcy bar in Houston, Texas sometime back and this was one of his pet peeves as well. His advice to attorneys practicing in his court was that before he comes out he has read the pleadings and reviewed the file. They do not know the import of his question and should not take import from his questions. The best course of action would be to just answer his question directly. Then, if they felt they needed to make an argument he would allow them that opportunity.
I agree. If it is a reasonably clear question, just answer it. Here is one incident in Court I saw the other day.
The Judge asks, "Counsel when did your file motion?"
That seems like a direct enough question. The answer was, "The point of the motion is to ..."
Is it ambiguity or is it that we attorneys cannot seem to stop spinning? I do not remember, but do law schools make law students take Ambiguity 101 or write briefs that are deliberately off point?
We all need to work on being more clear and not just saying we are clear when we are obviously not.