Writing for the Court: Control Your Outrage and Scorn

Here's a worthwhile post from Maxwell Kennerly's Litigation & Trial weblog: "How To Write Your Brief So That The Judge Will Hate You."

Kennerly's post came about like this. First, Kennerly read an article about a judge who wasn't happy with a tone of a lawyer's brief. Next, Kennerly went on PACER and found the offending brief. On his weblog, he highlighted some of the places where the brief's tone was suspect and made the whole thing available by clicking a link.

The offending brief includes a lot of vitriol and sarcasm aimed at the other side: it snidely says the plaintiffs (two legal professors) were motivated to sue by mere "unhappiness," says their claims are hard to understand, accuses them of "feigning injury," says they are wasting the court's time, and calls their action "obviously unmeritorious."

Does it sound like a lot of briefs you've read in your career? At the end of his post, Kennerly gives this advice:

Outrage and scorn are not wholly forbidden in front of a judge or a jury but you have to earn it.

An opening brief filled with sarcasm will perturb a judge doing his or her best to reserve judgment until they've heard both sides just as much as an opening statement filled with indignity will repulse a jury doing their best to be fair and impartial until they've heard all of the evidence.

Kennerly's post stands as a good reminder to all of us who write for judges--judges who are always more interested in the facts and the law than our own belly-aching about the other side.

Comments

[Brendan Kevenides]

Excellent reminder that whether written or spoken, vitriol and sarcasm have no place in the practice of law.

[Henry]

I work in a federal agency in Australia and read a lot of submissions complaining about alleged actions by other agencies

my eyes start rolling when a complainant's tone goes hyper, and it's an effort to remind myself that they may actually have a valid point