Once upon a time there was a concept that was known as zealous advocacy, which resided in the forest of obligations frequented by the legal community. The concept had been designed to be an integral part of the adversarial process (which had replaced jousting, snakepits, divination and various other imperfect methods for determining guilt, innocence, fault, entitlement and conflicting rights and obligations). Now zealous advocacy seems to be in disrepute and it is being suggested that the knights of the legal establishment venture forth to do battle with blunted spears and plastic shields.

There was once a time when lawyers were supposed to know the rules of civil and criminal procedures, and if they failed to follow them they would suffer the consequences; when lawyers were supposed to know the rules of evidence, and if they failed to follow them they would suffer the consequences; when lawyers were supposed to prepare their trial by working with witnesses to get them ready to be tested in the cauldron of cross-examination, and if they failed to do so they would suffer the consequences. Today is not such a time. Today, it is uncommon if an attorney who misses a deadline, puts in papers that are not authorized or fails to include a necessary exhibit is admonished, let alone sanctioned or otherwise precluded.1 We are fortunate when the trial judge is familiar with the rules of evidence, but likely to be frustrated by the fact that those rules are hardly ever followed. And heaven forbid if an attorney should be caught actually having prepared a client for testimony, cross-examination, depositions or critical interviews that might affect the outcome of a case.

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