I recently met with Commerce Court Judge Mark I. Bernstein, thanks again to my friend Mike Meehan. The discussion touched on a broad range of topics but mostly involved his views on the current state of legal practice in Philadelphia.
Bernstein's mantra is simple and, in theory at least, it should be easy for each of us to follow. Lawyers should be righteous in their legal practice -- and that means righteous not only to the client we represent, but also to the court and opposing counsel. The court's role, Bernstein believes, is to treat counsel and litigants like they are adults.
Bernstein sees himself as a patient judge, but as he points out with a tip of the hat to Henry Fielding in "The History of Tom Jones," "patience is a virtue which is very apt to be fatigued by exercise."
Some lawyers do fatigue Bernstein's patience, and he has suggestions that the bar should take to heart:• There is a benefit to simplicity in lawyering.
For example, he wonders why it is necessary to file a 60-page complaint. Many lawyers like their complaints to "tell a story," but the time it takes the court to read a massive complaint may mean that the story is not told well, or, for that matter, never is told at all.
The same is true for motion practice. Not only should arguments be concise, but lawyers should select the motion that provides the best form of relief. Why choose preliminary objections in the nature of a demurrer over a motion for judgment on the pleadings if former motion practice only invites an amended pleading?
• Do the right thing.
If a client is benefited by an early settlement rather than prolonged discovery, then the lawyer should attempt an early settlement of the case.
Similarly, lawyers should comply with discovery obligations in a straight up fashion. He cautions against hiding behind the rules, like referring to documents when a simple direct answer to an interrogatory is available.
• Bernstein is willing to guide lawyers in being righteous.
Some judges prefer avoiding involvement in discovery disputes, but Bernstein is willing to roll up his sleeves if an attorney is having problems with what should be fundamental discovery obligations. He does not shy away from finding a solution, but the non-righteous lawyer may not like the solution. Ordering depositions to take place on a given date or a per diem payment until a deposition takes place may not be popular to lawyers on the receiving end, but it usually results in a compliance with the rules. But, please, no calls for intervention while a deposition is taking place.
• Bernstein has a strong dislike of cross-examination without asking questions.
He feels that leading questions should be questions and not statements. Counsel should frame questions as "Were you there at the scene of the accident?" or even "Isn't it true that you were not at the scene of the accident?" as opposed to "you weren't there." These latter "statement questions" tend to lead to arguments between counsel and witnesses, and in particular arguments with expert witnesses.
Much of Bernstein's guidance may seem obvious to the righteous lawyer. Still, we can always use a reminder that we represent clients not to obtain victory at all costs, but rather to represent the best interests of clients within the parameters of our duties under the rules of court and rules of professional conduct.
It is also nice to know that Bernstein feels that a part of the judicial function is to encourage lawyers and litigants act appropriately, and that he will help out if problems are brought to his attention.
This article first appeared on The Legal Intelligencer Blog.