What should you do if your opponent, in her opposing brief, insults your arguments, or attacks your integrity in making them? What should you do if your opponent accuses you (by name, or not) of “disingenuity” and “misrepresentation,” or relies heavily on overblown rhetoric and hyperbole?
The most important thing is to keep it professional. Focus on the adverse party’s facts and arguments, not on opposing counsel, and certainly not by name.
Don’t allow the poisonous tone of your opponent’s brief to infect the one you strike in the response. Doing so risks turning the case into a bickering match—a snipe fest that will turn the court’s attention away from the legal and factual issues and test the judge’s patience.
Here’s a short example from Mayer Brown Federal Appellate Practice (2008) of countering what legal writing guru Bryan Garner calls “the Rambo writer” while maintaining a calm and reasonable tone:
“`[A]ppellee XYZ Company accuses us of ‘flagrantly mischaracterizing’ the record, but the testimony of witness AB at page ___ confirms that …’”
That wording is much more preferable than, say, “`[C]ounsel for appellee the XYZ Company [or Mr. Lawyer] accuses ….’”
As Mayer Brown puts it, “The point to communicate is that the [opposing party] has engaged in name-calling but has provided little or nothing of factual or legal substance.”
Another technique to use is what Judge Thomas Gibbs Gee, who served on the Fifth Circuit, called the “deflating opener.”
In a “deflating opener,” you simply recite “the worst rhetorical outbursts” of your opponent, “quoting them word-for-word” and “not characterizing them too much,” and then refocus the court’s attention on the main issues and your argument for why your client should prevail. Garner describes it as a “swift rejoinder.”
Here is an example from the third edition of The Winning Brief:
Lacking in authority, [opposing party] resorts to hyperbole to obscure the facts that support the valuation opinions. He denigrates [client’s] damage proof with pejoratives such as “inflated,” “overreaching,” “cavalier,” “breathtaking,” “speculative,” “cosmetic,” “tinkering,” “déjà vu all over again,” “fantasy,” “evasive,” “inherently unbelievable,” “baseless,” “not grounded in fact,” “unfounded,” “highly prejudicial,” “extravagant,” “grandiose,” and “wildly prejudicial.” He belittles the company with still more dismissive adjectives such as “troubled,” “moribund,” “demoralized,” “teetering on the brink of bankruptcy,” “toxic milieu,” and “awash in a sea of red ink.” All the while, though, [opposing party] provides no reference to the record to support these fantastical characterizations. While [opposing party’s] approach is concededly imaginative, [client] suggests a return to the facts and the law to resolve the issues raised by this appeal.
By summarizing the opposing party’s use of insult and hyperbole in the introductory paragraph, the author avoids having to explain why each assertion in the opposing brief lacks support. The “deflating opener” allows the writer to whisk away her opponent’s overblown statements in one swoop, and handily refocus on the issues that need addressing.
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 firstname.lastname@example.org. Follow her on Twitter at @SavannahBinSF.