Suggestions For Critical Thinking Skills in Advocacy
AFTER READING “BARRISTERS TIPS” FOR OVER A DECADE, I want to share a generic tip for newly admitted lawyers that I hope will help in all areas of practice. With case files piled high and hours needing to be billed, it can be easy to follow standard office protocols without giving them much thought. But amid the pressures of your day and the demands of your clients and colleagues, I urge you to take a step back and critically think about what you are doing. Think back to your childhood.
Remember when you were a kid and you were incessantly questioning your mom with, “But why not, Mom?” Even back then your mom might have suspected you would be a great attorney. In each phase of your life, as you grew and perceived the circumstances around you differently, asking these questions helped you come to understand the way things worked.
However, somewhere along the way we stopped asking, “But why?” That is too bad because now you are an actual attorney. That means you’ve had years of higher education and passed one of the most difficult professional exams in the country. Some of you are even licensed in other states and countries. Yet for some reason now that you pay the State of California dues each year, many of you kind of just go through the motions and follow what everyone else is doing.
Maybe you’ve heard something along these lines in your legal experience: “That’s the way we do things” or “you can’t fight the system” or “we have always done it that way.” I know I have. Most of the time there is no problem with that. But for those times when you aren’t sure or think there may be a better way, I hope you will take the time to look into the issue at hand. Here are a few times this has happened in my practice:
Signing the Proof of Service. Does your firm have a policy of blindly signing every Proof of Service (POS) form, including the copy that is sent to the addressee? Or have you asked opposing counsel via a meet-and-confer letter why their POS attached to the served document
is not signed? This is a common practice copied by everyone, especially at large law firms. The statute is cited right on the POS form, but I don’t think people ever read it.1 If they did, they would see that they would be committing perjury by signing a POS attached to the document being served. It is clearly not accurate to state that you have served a document prior to serving it.
Requesting Traffic Collision Report. Do you always have the client sign an authorization to request the Traffic Collision Report? Have you ever had your request rejected if you did not enclose an authorization from your client? I encountered this issue a few years ago with the Los Angeles Police Department, one of the largest records divisions in the state. I was told that my request was not valid because I did not include an executed authorization from my client.
I took a deep breath and respectfully told the clerk and the supervisor that the California Vehicle Code says I may request it without an authorization from my client. The supervisor told me, “We have always done it that way” and that in her 27 years she had never seen it my way so it could not be right. Nevertheless, she said she would have LAPD legal counsel get in touch with me to explain “the way we do things.” Shortly thereafter, I received both a verbal and written apology and was advised that going forward staff would handle these issues in accordance with the California Vehicle Code.
Now you might be thinking, “What is the point of this article? Who cares if the POS is done wrong? What does it matter if I have to have my client sign an authorization?” Well, you are probably right. Those examples are not very consequential, but I wanted to share with you common examples that you might see or have probably come across as a new attorney.
My point is that this is going on for the big stuff, too, the issues that have huge consequences for your clients. I see it happening all the time where my opposing counsel just wants me to go along with something to my client’s detriment. I am talking about major issues that affect people’s lives and families. I am talking about the hundreds of thousands of dollars my clients have been able to hold onto when someone wanted to take that money away; the license that was suspended and then reinstated; the house that was taken and then returned; the ability to recover money for the death of a loved one after being told it was impossible; the serious felony charges that were dismissed because no crime was committed under the law.
I challenge you to think critically about what you are doing and about what others are asking you to do. It might add a few minutes to your work day, but it might have a significant benefit for your client one day. I hope it will also have a positive impact on how you view yourself as an attorney. You are an advocate. Not just for your client, but for yourself. So take a second, reflect on your work, and be proud of your accomplishments. After all, “Why not?”
About Christopher Montes de Oca
Christopher Montes de Oca is an experienced personal injury lawyer in Los Angeles. Chris is recognized as a “Super Lawyer Rising Star,” a recognition that only 2.5 percent of lawyers receive, because of the exceptional results he has seen and his dedication to his clients. Chris services clients throughout Los Angeles, including Echo Park, Maywood, Long Beach, Whittier, Glendale, La Mirada, Pico Rivera, Hacienda Heights, and Alhambra. You can reach Chris at (562) 901-4664.