The Supreme Court issued one new decision last week, which I sincerely hope is not directly applicable to any of you. Nevertheless, a few takeaways from recent events:

• Cite as you write the facts, pulled only from the record. Don’t rely on your memory and don’t wait until your brief’s deadline to try and find the record citation.
• Pay attention to the Bar’s position on non-refundable consultation fees. Review your own internal and external policies and make sure staff understand what to do. States differ on these questions.

I recently attended a luncheon for local appellate lawyers (the “appellate guild,” as Steve Emmert used to call us). Our distinguished speaker was a judge in our Court of Appeals. I had several takeaways, but one was a reminder from the Court about how important it is to maintain your credibility.

Our speaker reiterated that the Court notices when an attorney states something that turns out not to be accurate. While this is hopefully not ground-breaking to most of us, it is a reminder to be careful and thorough. Here is some advice: Only write what you can cite (how’s that for catchy?). Cite to pages in the record as you draft anything on appeal—don’t wait to fill it in later.

Don’t recite facts from memory. Trial lawyers have the added burden of having to fight with their own personal recollections. Our memories can play tricks on us. And even if our recall is excellent, sometimes important facts or documents are missing from the record. Proceed with caution. May I add that this is an excellent reason to consider hiring appellate counsel to take over?

This doesn’t just apply to appeals—it applies to all of us. We all know which opposing counsel we can’t trust. Don’t be that guy. Have you promised something to the jury? You’d better deliver. Did you tell a client you’d get back to them? You need to be as good as your word. The judges we repeatedly appear in front of are quite astute at knowing who holds credibility.

Your reputation matters. Do things the proper way.

I also want to mention a takeaway from last week’s Supreme Court Opinion about non-refundable consultation fees. Most of us have now heard that advanced legal fees cannot be earned when paid. See LEO 1606. But this case raised the question of how that provision applies to consultation fees and “retainers.” The Bar refers to retainers as fees that ensure a lawyer’s “availability for future legal services.” Id. (note: this is a different definition than the one commonly used by lawyers).

Without delving too much into the weeds, the attorney in question should not have kept consultation fees as earned fees when the client did not have a consultation. For those of you who are part of various business or social groups with lawyers from other states, pay careful attention to your consultation fees. We have different requirements than others, and you don’t want to be on the wrong end of our professional responsibility requirements because you got bad advice from a colleague elsewhere. Additionally, be respectful and professional on social media (this is how our colleague got in trouble with the Bar in the latest Opinion). 

One last thing: Appeals last for many months. The most recent statistic I heard for CAV appeals is that they last 400+ days on average. If your opposing counsel needs a reasonable extension when they first get retained, do not be the attorney who says no without a valid reason. Or who says, “we’ll agree to one week but not two.”  

Reasonableness begets reasonableness. Act like the attorney you want to be—and who you want to work alongside. We’re all in this together, folks.