I love lawyers and judges. I come from a family of lawyers. I married a lawyer from a family of lawyers. My heroes–David Bruck, Jimbo Morton, and Judy Clarke–are lawyers. My best friends are lawyers. My grandfather served as acting chief justice of the Supreme Court of South Carolina. My parents served as magistrates. A brother-in-law is a federal judge.
For years I could not understand why litigants, laypersons, and the public dislike, detest, and disrespect lawyers and judges. Forty-seven years after finishing law school, I understand. My understanding came not from major injustices, extraordinary sleaziness, examples of gross incompetence, nor basic dishonesty, although I have witnessed all of those. The revelation came from some simple motions in the Court of Appeals.
In one case, one of the best and most respected lawyers in South Carolina, whom I consider a friend and mentor, moved for an extension of time to file an initial brief of appellant and designation of matter to be included in the record on appeal. The Court granted a sixty-day extension of time but provided “No further extensions will be granted absent extraordinary circumstances.” No problem. I explained it to my client. Sixty days later, the Court grants another extension of time and again says “No further extensions will be granted absent extraordinary circumstances.” Again I am not offended and I explain it to my disturbed and disbelieving client. Thirty days later, the lawyer asks for a third extension. I file a return opposing the extension. The Court grants the extension. Now I am frustrated and the client is understandably alarmed, appalled, and angry. The lawyer seeks fourth extension the court grants it. The client is asking questions about ex-parte contacts but did not use that phrase. He also asked me to “Please restore my confidence in the SC legal system.”
In a custody appeal, neither the respondent nor the guardian ad litem serve an initial brief or designation of matter. Guardian then moves to file a brief. Despite what I thought was a good return opposing the motion, the Court grants the guardian twenty days to serve the brief and designation of matter. This neither bothered nor surprised me. I explained it to the client. On day nineteen, the guardian moves for another extension on the ground that “through error, the transcript was not obtained and has now been requested.” This was five months after I received the last transcript. I began my return to oppose the extension but I remembered what Fritz Hollings told me in 1962 after he lost his United States Senate race to Olin D. Johnston. I asked if he would run again in 1968. He replied, “Son, there is no education in the second kick of a mule.”
I am not opposing the guardian’s motion for an extension of time but now I understand why litigants, laypersons, and the public dislike, detest, and disrespect lawyers and judges. Just as baseball players, managers, umpires, and avid fans understand the phantom double play, lawyers and judges understand that, other than filing the notice of appeal, no deadline in procedural trial or appellate practice is critical. We expect the courts to grant motions for extensions, just as baseball people expect the umpire to call the runner out at second on the phantom double play. What we, as members of the legal profession, fail to appreciate is that litigants and laypersons expect lawyers and judges to follow and to enforce deadlines.
Litigants and lay persons believe that rules and laws mean something and should be obeyed–at least by other people. When lawyers and judges ignore the rules, lay persons believe the system is corrupt and the judge granted inappropriate favors to the other side. When we break the rules, we justify or excuse it. When others break the rules, we resent it.
Walt Kelly’s Pogo Possum got it right. “We have met the enemy and he is us.” John Dunne, in my favorite quotation from English literature, also got it right. “No man is an island, entire of itself; every man is a piece of the continent, a part of the main; if a clod be washed away by the sea, Europe is the less, as well as if a promontory were, as well as if a manor of thy friends or of thine own were; any man’s death diminishes me, because I am involved in mankind; and therefore never send to know for whom the bell tolls; it tolls for thee.”
When one member of the legal profession looks bad, we all look bad. We need to understand that what we know to be innocent and routine may not be perceived as either innocent or routine by outsiders. If lawyers and judges want respect from laypersons and litigants, then the lawyers and judges must follow the rules and insist that others follow the rules. Until then, they will see us as bottom-dwelling pond scum.
Written by: Thomas F. McDow, May 24, 2015