Peter Broida's
"Bad, Bad Practice List" for Agency Attorneys

Bad, Bad Written Product: In litigation before the MSPB, as in other forums, you are judged by your written work product in addition to your advocacy skills. Proofread your material. Take out the invective and sarcasm. Be gracious in your remarks when possible. Try to avoid openly disparaging the appellant, his counsel, or, when possible, the judge.

Bad, Bad Relationship with Opposing Counsel: If you do not know the opposing counsel from the case, call him or her up and introduce yourself. Avoid antagonism. Do not hang up the phone. Avoid attributing personality disorders or questions of parentage to your opposing counsel.

Bad, Bad Relationship with the Judge: Meet your deadlines. Do not be disrespectful to the judge.

Bad, Bad or Nonexistent Research: Do your research. Board law can be complex.

Bad, Bad Organization: Poor organization guarantees poor representation. Keep a master litigation file containing all pleadings, a correspondence file for correspondence, memos to the file, significant e-mails and research memos and a research file to keep track of significant cases, statutes and regulations.

Bad, Bad Attitude: Do not be overzealous or become the de facto antagonist to the employee. Keep your cool. Don't let your mood impair your representation.

Bad, Bad Planning: Plan ahead; avoid the need for extensions, but understand how to get them. A continuance is unlikely. A suspension is possible. A dismissal without prejudice to refile the appeal is always desirable (although, technically it is the appellant's motion). Remember to try to get the appellant's consent in advance of the motion.

Bad, Bad Response to Appeal: Use a narrative response to the appeal. Be persuasive, but be accurate. Explain the nature of the case and any procedural wrinkles. Provide a narrative of the facts of the case, cross referenced to materials in the record that you are filing. Provide citation to nonobvious points of law.

Bad, Bad Discovery: Start your discovery on time. Informal extensions between counsel count for nothing when you need to file a motion to compel and it is typically too late to do so. Take the appellant's deposition unless there is a darned good reason not to. Confer with opposing counsel in some fashion before filing a motion to compel discovery.

Bad, Bad Settlement Tactics: Know when to say no and understand the consequences. No verbal  settlement agreements-never, ever. Keep a settlement binder, and keep track of what is going on as the process evolves. Someday you may have to be a witness in compliance proceedings.

Bad, Bad Settlements: Do not create and do not allow ambiguities. If you are going to create backpay entitlements, spell them out so everyone is sure what is going to be paid, how it is going to be paid, when it is going to be paid, to whom it is going to be paid, and what accounting will be provided. Also, specify if there are to be payments of interest and whether it is contemplated that there will also be adjustments in retirement or other benefits. As to the timing of payments, don't make promises you can't keep, e.g., DFAS. Lump sum payment? State that appellant is responsible for his or her taxes. Use an integration or zipper clause. Do not be the only signatory, as counsel for the agency. Have a manager sign the agreement.

Bad, Bad Settlement Clauses: Certain settlement clauses are constant sources of enforcement litigation. Be particularly careful and very precise in drafting "clean paper" settlements, reference provisions, non-disparagement clauses, agency obligations to pay appellant's counsel fees. For confidentiality agreements, be realistic: recognize there will be communications between the appellant and some other people concerning settlement and that management may need to disclose information during the course of background or other investigations.