LawProse Lesson #212: Be the voice of reason.
Does a snarky tone win in motion practice? Among the most common remarks that judges make about advocacy is how extremely distasteful they find digs, jabs, put-downs, and negative characterization of opposing counsel and opposing clients. Yet litigators everywhere seem to adopt these tactics more than ever. So what’s the best approach, and why? Should we trust what judges say about motions they find persuasive? Or should we assume that litigators have learned something—that the judges really are favorably affected by the negative tactics and don’t truly know what persuades them? Say you’re a judge and you pick up this motion: Before: Callan Co. makes meritless waiver claims. It claims, for example, that Tarton Systems didn’t disclose the rulings of the court that they lost on. But Callan blithely ignores all of the findings dealing with the appeal on the merits, where Tarton complained about mistakes below. Paraphrasing Mark Twain, Callan’s reports of Tarton’s alleged waiver have been greatly exaggerated. For example, Callan blunderingly carps that appellants didn’t challenge the Statement of Decision. Callan’s claim is so wrong on many levels. Because Callan’s brief is filled with plentiful blatant and fanciful exaggerations—too many to list here—Tarton attaches a table that delineates 34 other examples for the court’s amusement or chagrin (Appendix pp. 1–3). It could have read this way: After: Callan Co. asserts that Tarton Systems has waived this appeal. For example, Callan claims that Tarton did not challenge the statement of decision and cites In re Marriage of Arceneaux in support. Arceneaux is not on point because the plaintiff in that case did not object to the proposed statement of decision or move for a new trial. Here, Tarton repeatedly objected to the statement, moved for a new trial, and also moved for a new and different judgment. Callan also claims that Tarton did not disclose adverse rulings of the court. In fact, though, Tarton has filed with this court the entire record of the appeal on the merits. That’s an actual example that I’ve shown to hundreds of groups of lawyers and judges. Every group has reacted negatively to the first motion and positively to the second motion. It stands to reason that we can mostly accept what judges say about persuasion. On this particular point, the reason is obvious: judges must understand and accord competing interests their due. A judge’s job is to be an impartial arbiter of the law. When the advocate takes a sardonic, barb-ridden tone, it becomes very difficult for the judge to align with that advocate. The moral of the story: Always strive to be the voice of reason. An advocate’s role is to be a client’s champion in court. The advocate who plays the buffoon in a farce is botching the job. Further reading: The Winning Brief 459–68 (3d ed. 2014).