HIRSCH PRACTICE ORDER

UPDATE: The comments on this issue are fascinating as lawyers from around the state weigh in on the sesquipedalian Judge on the third floor. However, one comment really stands out and we readily admit we missed this angle:

Anonymous said...

Memo to Judge Hirsch - thanks for insulting all of the wonderful, intelligent, hard-working law clerks in your Memorandum. Despite what you think law clerks are often times just as bright and knowledgeable on the law as a lot of our Judges. Maybe not you - oh Judge of great wisdom and intellect
- but for sure a lot of these 10 year lawyer Judges out there.

Tuesday, February 15, 2011 8:38:00 PM

Here we go. The much discussed, (in)famous Judge Hirsch Practice order.

Judge Milton Hirsch Motion Practice Order

A few thoughts:

The order is dated January 4, 2011, the first working day of his term.

One could say it shows that he started his term prepared. Others could say that he issued an edict without even seeing how the courtroom was running, considering he had to spend the first week at Judges camp in Tampa.

The order starts off a little demeaning with "Attorneys may not calendar motions."

Nothing like a good negative shot across the bow to get off on the wring foot.

And then we get to the now infamous "Nothing" clause which we repeat in its epically pompous entirety:

"There is nothing- absolutely nothing- so unprofessional as handing a judge a reported opinion in support of a motion. A lawyer who attempts to hand a judge a reported opinion in lieu of a memorandum of law is saying to the judge in unmistakeable terms: 'Neither my reputation nor the outcome of this case matters enough to me to prompt me to litigate in a lawyerly fashion. And I have so little respect for you Judge, that I'm treating you as my law clerk. Here, take these cases and read them, and figure our how, if at all, they apply to my motion."

(Having typed that clause from the order, pardon us a moment while we go take a shower.)

OK, we're back. Where to begin? Where to begin? Well, since we now have the absolute limits of disrespect for his court (handing a case to him to read without a memorandum of law) we guess showing up in shorts and t-shirt with a beer and a Marlins cap to argue a motion is not as disrespectful to his court as having the audacity of handing him a case. So now you know just how far you can go.

Hirsch: Counsel, look how you're dressed!

Lawyer: But yeah dude, but I gave you a memorandum of law like and dude I don't have no cases to be handing you.

This scenario is apparently not as bad and less disrespectful then after prepping for a motion and discovering a new case, copying the case and handing it to the Judge as the latest case law on point sans new memo.

But lets really get to the problems. First- what if you write a detailed memorandum of law and find a new case? Do you need a supplemental memorandum of law? No one knows. There is no precedent. Second- what will the Judge do if you hand him the perfect case on point? Not read it and make a wrong decision? Fine you? Storm off the bench morally insulted beyond the bounds of human endurance? No one knows.

But the real problem is the inherent misconception that attorneys (read PDs and Regional Counsel attorneys) who have case loads of 80-200 are going out of their way to insult him when they plow through their cases, find issues of law, and file motions that aren't appropriately supported by memorandum of law. Furthermore, consider the PD, having worked on Sunday to go through the upcoming trials a few weeks away, and having prepared a dozen or so motions, then finds himself or herself in trial during their trial week. With the pending motion set for Friday (as the order mandates) the PD struggles home at 8pm, tries to deal with family, prepares a closing argument for the next day, and oh yeah- does some last minute research for the motion and lo and behold finds a new case! Uhho. Now what do they do? Stay up another hour banging out a memo of law or lord forbid, just give the judge the case? Talk about your dilemmas.

And finally, surprisingly, here is the tactical maneuver that the order fails to comprehend. For a Judge who comes to the bench as an attorney who had a lot of experience trying cases and arguing motions, just how detailed do you think the best lawyers want to be when they prepare a motion? Because in this day and age, preparing a detailed motion is akin to giving the prosecution a roadmap and saying: "hey-your stupid cop went into the house and looked around before getting the warrant so I'm going to spell it out and brief it because that's what the Judge wants so make sure you pre-try your cop and he throws in one of the 4th amendment exceptions that allow him to do that, although he failed to mention any reason why he went in the house during the deposition."

The whole thing is overblown. Maybe attorneys should brief the case law in their motions. Granted in many cases this is the proper and professional way to prepare a case and certainly the Judge had the well earned reputation as a professional and thoroughly prepared advocate. And maybe the Judge might spread the word that this is the procedure he prefers. But when the Judge paints with a brush so broad that he labels the actions of every attorney who has the unmitigated gall to hand him a three page case without a memorandum of law as the absolute unbearable insult to the dignity of court (and he presumably wrote the order before he was a Judge) well, that is just too much for us to bear. And quite frankly surprising for a Judge who has stood in our shoes (defense attorneys) and is well aware of the problems of maintaining a large practice or being a PD.

To quote that legal scholar Sergeant Hulka (Warren Oates) in Stripes:

"LIGHTEN UP FRANCIS!"

If the court is not too busy reading memorandums of law, we invite a reply which we guarantee on our oath as an anonymous blogger will be published unedited and WITHOUT commentary.