Last week Anderson blogged about this Sixth Circuit opinion in which the Court schooled State Farm’s lawyers for calling the plaintiff’s arguments ridiculous:
There are good reasons not to call an opponent’s argument “ridiculous,” which is what State Farm calls Barbara Bennett’s principal argument here. The reasons include civility; the near-certainty that overstatement will only push the reader away (especially when, as here, the hyperbole begins on page one of the brief); and that, even where the record supports an extreme modifier, “the better practice is usually to lay out the facts and let the court reach its own conclusions.” Big Dipper Entm’t, L.L.C. v. City of Warren, 641 F.3d 715, 719 (6th Cir. 2011). But here the biggest reason is more simple: the argument that State Farm derides as ridiculous is instead correct.
My Take:
I’m not a fan of the Sixth Circuit’s opinion. And it’s not because I routinely describe my opponents’ arguments as ridiculous.
Thankfully, “ridiculous” is not a word that shows up much in my briefs. I ran a search of the documents on my server, which covers eleven years of legal work. I found only one brief where I described an opponents argument as ridiculous. Believe me, in that case, it was. I heard through back channels that the client made the lawyer file the ridiculous motion, which is a topic for another day.
But maybe I still got a little carried away.
The reason that I am not a fan of the Sixth Circuit’s opinion is that I do not view State Farm’s verbiage in its brief as worthy of the Court calling out the lawyers, which is what is going on here. I’m all for judges calling out lawyers’ conduct–in very limited circumstances.
Lawyers who are sneaky and generally unprofessional deserve to get called out by the Court. But lawyers who get carried away arguing in their briefs? Not so much.
There are plenty of times that I read an opponent’s brief and think they are getting carried away. Perhaps my opponents can say the same thing about my briefs. Usually, I just ignore it, as do my opponents if I am doing it.
The best practice is to address the other side’s argument–not how they make their argument. Usually that is the best practice for a Court too. Courts should rule on the merits of the motion–not opine on the quality of the brief writing.
In the grand scheme of things, would it have mattered if State Farm’s lawyer had used the word “incorrect” instead of “ridiculous”? Ultimately, you have to argue that the other side is wrong–even if they might not be.
Often, what the lawyer is thinking is: “I can see their argument, but they are wrong.” But what goes in the brief is: “they are wrong.” Yea, you can look like a twerp if you call an argument ridiculous when it’s not. But is it really a big enough deal to warrant the court calling them out?
In other words, Courts should not call a party’s arguments stupid, even when they are. Referring to an opponent’s argument as “ridiculous” is probably not a very professional and congenial act. But neither is a Court calling out the lawyer who does it.
Sometimes lawyers can get a bit carried away. Sometimes it just means that they care too much about the outcome of the case. Usually lawyers and judges should cut each other slack when this happens.
Here, the Sixth Circuit opinion gets a bit carried away–exactly what it complains about. Pretty ironic, if you ask me.