70 The Alabama Lawyer 207 (2009). Red Flags for Young Attorneys to Avoid.

• Author: BY BRANDON C. STONE

The Alabama Lawyer

2009.

70 The Alabama Lawyer 207 (2009).

Red Flags for Young Attorneys to Avoid

Red Flags for Young Attorneys to AvoidBY BRANDON C. STONESo you have passed the bar exam with flying colors and are ready to embark on your long successful career of practicing law! Congratulations on your accomplishments and beginning what I believe is a profession that is constantly mentally stimulating and rewarding. Unfortunately, as you begin your practice, you will probably find, as I have, that after all the years of studying and preparation, mistakes will be made. They are practically unavoidable.

Even the most successful lawyers will admit that they make mistakes from time to time. In my experience, the manner in which mistakes are handled will determine what overall effect they will have your litigation. I believe they best course of action is to meet your problem head-on. Reveal the problem to your supervising attorney, admit that you made a mistake and begin exploring possibilities to correct the misstep. As a new attorney, you will be expected to make mistakes. I have found that in taking these proactive steps, I often discover that the mistake was a very minor issue compared to how I perceived it, the mistake was easily correctable or that the mistake was not a mistake at all.

Perhaps the worst thing you can do is hide behind your desk and hope that a mistake will in some way correct itself or that no one will notice it. Your problem could become worse as time passes and take a real toll on your case.

In my three short years of practice, I have made my share of blunders, and I would like to believe that I have learned from them. I have also tried to learn from the mistakes of others. Below, I have addressed five random examples of statutory law, caselaw and rules of court that in my experience have been stumbling blocks in the course of litigation. Some of these examples are commonly argued and briefed, and others are a little more obscure. My hope is that these "red flags" will help you in your practice, and you will learn from mine and others' mistakes. I have attempted to discuss these examples in the order of potential for seriousness of consequences (and potential for mental and emotional trauma to you) from least to worst if the errors at issue are made.

Motions to Dismiss Pursuant to Rule 12(B), Ala. R. Civ. P. Are Not Permitted in District Courts

The defenses listed in rule 12(B), Ala. R. Civ. P. obviously arise in cases before district courts as they do in circuit courts. However, in district court actions, those defenses must be asserted in the defendant's answer and not by motion. Rule 12(dc)(2), Ala. R. Civ. P. states that "the provisions for the assertion of certain defenses by motion at the option of the pleader in Rule 12 are deleted."

The real danger in incorrectly filing a motion rather than an answer is waiving certain 12(B) defenses. Rule 12(g) of the Alabama Rules of Civil Procedure states that "[i]f a party makes a motion under this rule (Rule 12) but omits therefrom any defense or objection then available to him which this rule permits to be raised by motion, he shall not thereafter make a motion based upon the defense or objection so omitted. . . ." Rule 12(g), A. R. Civ. P.

The Alabama Supreme Court commented on this rule in Couch v. Sutton, 508 So. 2d 681 (Ala. 1986). The court stated that "the rules do provide that objections to improper venue are waived if not raised in the first responsive pleading or first motion." Rules 12(g), 12(h)(1), A. R. Civ. P.; Id. at 681-82. See also Den-Tal-Eze Manufacturing Co. v. Gosa, 388 So. 2d 1006 (Ala. Civ. App. 1980).

If an improperly filed motion to dismiss is filed with the district court, an opposing party might argue that the motion should be stricken. If the court rules that the improperly filed motion was your "first responsive pleading" as referenced in Couch, it could be grounds for a ruling that your 12(B) defenses are effectively waived. The easy solution to avoid these problems is to simply file an answer to a district court complaint which lists all of the appropriate 12(b) defenses.

Fortunately, the District Court Committee Comments following Rule 12, Ala. R. Civ. P. state that "a party will not be deemed in default if he has served an appearance in the form of a motion to dismiss," which references Rule 55(dc)(5), Ala. R. Civ. P.

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