If you wish to be taken seriously by the court, whether in oral or written argument, never malign or belittle your opponents or their position. Treat opposing counsel with respect, regardless of whether you feel they deserve it. This is a fundamental rule of courtroom etiquette and common decency.
The American College of Trial Lawyers put it well in the 2002 edition of the organization’s Code of Pretrial Conduct:
Neither written submissions nor oral presentations should disparage the integrity, intelligence, morals, ethics, or personal behavior of an adversary unless such matters are directly relevant under the controlling substantive law. (§ 3(b).)
Lawyers should avoid hostile, demeaning, or humiliating words in written and oral communications with adversaries. (§ 4(b).)
This means you shouldn’t write that your opponents blithely argued this, or disingenuously argued that—or claim they misrepresented law or fact. If you say your opponents “misrepresented” something, you mean they have made a false statement with the purpose of deceiving the court. Misrepresenting the law or the facts is an ethical violation. Even so, lawyers frequently use the word casually.
Moreover, use of hyperbole and derision makes the judge suspect your own arguments lack merit, and, in desperation, you’ve resorted to “smear and rant,” as legal writing expert Bryan Garner describes the most unbecoming of tactics.
If you believe your opponent has misstated or mischaracterized fact or law, point the error out calmly and courteously. Never sneer. Judges hate that. It makes them think you do not respect the court or the legal process, and have no sense of your duty as an officer of the court. The smart attorney tries to never misstate the law or the facts, and certainly never misrepresents them.
Furthermore, do not misstate or twist your opponent’s argument to suit your own. Lawyers who play dirty undermine their credibility and reputation with the court. The prudent attorney wants to come across as the trustworthy voice of reason. So state your opponent’s position fairly and accurately.
Consider the admission made by Hon. Frank M. Coffin in his book, On Appeal: Courts, Lawyering, and Judging: “I like, to the point of being unduly swayed by, a brief that contains not one pejorative adjective or innuendo concerning one’s opponent or the trial judge.” (ital. added.)
Keep that statement in mind, and never file a brief that has language sounding something like this:
“Company X unwittingly reveals its true intent … It patently ignores the position of the court and erroneously devotes much of its brief to totally irrelevant issues … Largely ignoring the authority, the company disingenuously mentions only one decision… Such an opaque attempt …”
The text above (inspired by one of Garner’s examples of “egregiousness” in The Winning Brief (3d Ed.)), is replete with insult. It also illustrates another brief-writing no-no; overstating the facts or law. Is every single one of the issues Company X raises in its brief truly and utterly, 100 percent irrelevant? Since the answer is “probably not,” the writer was unwise to describe them that way. An overstatement makes the court doubt the veracity of the advocate’s preceding assertions, and those that follow.
Remember that readers naturally view a person’s writing as a revelation of who they are as a human being, and that it is human nature to find the person we like the most to be the most convincing. Judges, after all, are human beings, too. So make what you write for them or say in their presence reflective of your good character and dignity.
About the author:
Attorney Savannah Blackwell is a former news reporter who covered government and politics for more than a decade, mostly in San Francisco. She can be reached at savannah.blackwell@gmail.com. Follow her on Twitter at @SavannahBinSF.