Monday, January 7, 2013

The cost of incivility

While it depends somewhat on the case, normally I try to keep briefs I write free of invective or pejoratives.  Mostly, that is because I figure that calling something "an outrage" (to use one phrase that lawyers seem to love) is ridiculous in a civil case.  The Holocaust was an outrage. Darfur an outrage.  Failure to perform the terms of a contract is not, and never will be, an outrage.  The failure to turn over some piece of discoverable information is wrong and should not be countenanced by a court.  But, it is not an outrage.

I imagine most judges feel the same way about civil cases.  After all, judges preside over murders, sex crimes, and sentence people to very long periods of time in prison.  Given those type of things, it is hard to see the upside in using put-downs in a brief.

At least one judge in the agrees with me—or I with him.  In Nissim Corp. v. ClearPlay, Inc., __ F. App’x __ (Fed. Cir. Dec. 12, 2012, Judge Jimmie V. Reyna uses a footnote to point out that "excessive hyperbole" in briefs "makes them difficult to take seriously and unpleasant to read."  Among the pejoratives the parties used in their briefs:  "moan[ing]," "absurd," "bias-inducing screed," "unnecessarily time-consuming and expensive," “illconceived,” “wast[ing] the time and resources," a "massive waste of judicial time and resources," "inexplicable," "strange," and "baffling."

Judge Reyna goes on to cite Justice Scalia and Bryan Garner:
The parties would be well-advised to take the advice of Justice Scalia and Bryan Garner: 'Cultivate a tone of civility, showing that you are not blinded by passion. . . . A straightforward recital of the facts will arouse whatever animosity the appellate court is capable of entertaining, without detracting from the appearance of calm and equanimity that you want to project.' Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 34-35 (2008).
The other reason not to engage in a bunch of bomb throwing at the other side is that the other side will remember it.  I do not refer cases to lawyers who lob pejoratives at me and I do normally will not agree to changing any deadlines with a lawyer who engages in that sort of nonsense.  While there is evidence that incivility works, it comes with a cost. 

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