Saturday, February 07, 2009

Federal Practice: Government-Please Call Again, Defense-Piss Off

After 15 years of practice, I'm not one of those lawyers who constantly bitch about the "unfairness of it all" (I just write about it).

The case law is against us, the Government is pounding on us, the politicians, unable to work on any other social issue, create more silly laws to "protect" us, or actually, protect their seat.

But lately I've noticed this trend in federal cases. Note: we bloggers tend not to write much about the bad shit in federal court for fear of, well, I don't know.

Here's 4 examples of what I entitle "Government, please call again, defense, piss off:

EXAMPLE 1

Client re-indicted.

Government CALLS magistrate judge chambers to place on calendar the new first appearance (a complete waste of time at that, but I digress).

Notice issued.

Date conflicts with oh-my-dear, out of town hearing for defense counsel.

Defense counsel CALLS magistrate judge chambers and asks to re-set it not for next month, or next year, or even next week. but for the next day.

"File a motion for continuance." (and wait).

EXAMPLE 2

Hearing set.

Government contacts defense counsel to say that hearing conflicts with another trial.

Defense and Government agree on possible new dates for hearing.

Government CALLS judge's chambers and has hearing reset.

No motion needed.

EXAMPLE 3

Government and Defense agree on date for first appearance.

Government CALLS magistrate judge chambers.

Hearing set.

Date needs to be changed.

Government and defense counsel agree on new date.

Defense counsel CALLS magistrate judge chambers.

"File a motion for continuance and (this is the best part) don't assume it's been continued until you receive an order."

EXAMPLE 4

Law Clerk (don't talk to the law clerk) e-mails all counsel to request (via return email) available AND unavailable dates for a phone conference.

Order issued for telephone conference.

Date for telephone conference conflicts with another federal trial (yes there are other federal judges and they have cases as well).

Defense counsel e-mails Law Clerk to advise that date on order FOR PHONE CONFERENCE conflicts with other federal TRIAL and can't be there.

Judge calls defense counsel and tears him a new one for contacting law clerk via e-mail about the order.

So it appears the rule is "Government, please call again, defense, piss off."

Of course I hope one of my faithful federal judge readers (yeah, that's a joke, laugh) doesn't respond "you know, you're right Brian, now everyone can file motions, no more calls."

I just wonder what is the fear of efficiency, a quick phone call? Is the assumption that we cannot be trusted that we actually spoke with the Government? Is it that we need to do much more work to get the same thing accomplished as the Government? Why do I have to write a motion, convert it to .pdf, and electronically file it instead of just making a call so someone can move a line on a calendar to another line?

There is no doubt that in federal court a lot of it is form over substance. The purposefully intimidating courtrooms, the "gotcha" every time you make a silly unintentional mistake, the filing of motions for things the Government can just call about. I was doing a Friday wrap up with a fellow defense lawyer about his ongoing federal trial and most of the conversations was about the judge yelling at the lawyers about, well, everything. There was very little about the actual case.

Those that practice in federal court know that vacations are taken by permission, schedules belong to the court, not to the lawyers, and life often takes a back seat to the proceedings.

So, like at the end of a date, my question is, "Can I call you, please?"

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

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