The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Many of you are lawyers; many of you hire lawyers. One thing I love most about us lawyers is that we work hard to be good at what we do (it's not an easy way to make a living). Sometimes, we work so hard to keep everybody happy, especially our clients, we lose our common sense. What happened to my common sense? It was right here just a minute ago! As I have noted before, underneath our bluff and bluster dwells a pretty nice person, a volunteer, a coach, a good neighbor. But tell me why anyone not suffering from temporary insanity would write:
This is a story of a legal system run amuck, a Kafkaesque demonstration of tyranny given free rein.
What does that have to do with bolts of cloth in a warehouse? And why would anyone write this about the owner of that warehouse?
Importer's conduct in negotiating the 'purchase' of these alleged liens was based on the syllogism employed by many Middle Eastern terrorists with a penchant for seizing airliners and their passengers to secure the righting of what they perceive to be wrongs.
The next one, I've lain awake at night trying to picture:
The Defendant's actions can only be described as economic sodomy.
Would anyone smart enough to pass a state bar exam ever write this stuff because they thought it was effective? Of course not. We write it because we are grandstanding for a client, who is paying our bill. Many clients love to see their lawyers use a brief to punch the other guy in the face, the harder the better. But if we determined fees according to results, lawyers would never write this way, because writing this way loses cases.
One of our better-known lawyers, Abraham Lincoln, told a crowd in 1842:
When the conduct of men is designed to be influenced, persuasion, kind, unassuming persuasion, should ever be adopted. It is an old and a true maxim, that a "drop of honey catches more flies than a gallon of gall."
Remember, this was a guy who was not afraid to stand up for what was right. He just thought it more effective not to scream while he was standing.
Judges warn us frequently, but we can't seem to help ourselves. The Sixth Circuit Court of Appeals in Ohio recently emphasized:
… the near-certainty that overstatement will only push the reader away (especially when, as here, the hyperbole begins on page one of the brief).
Do lawyers somehow forget that their words will be read by judges who are about to decide whether their client will prevail? In an unpublished opinion out of Illinois, the court reminded all lawyers:
Repeated use of exclamation points at the end of sentences is wholly unnecessary …. More troubling is that plaintiff's arguments are also riddled with vituperative language leveled against the trial judge, … such as that "the court systematically eviscerated plaintiff's case" or that "the judge created absurdity and injustice." … [P]laintiff was similarly highly disrespectful in his briefs to the trial court, as well. Such pre-planned advocacy by an attorney never arouses sympathy for his client.
That is as close as any judge will ever come to admitting that such language might sway them from the true path of impartiality. (A little secret: judges are human; they respond viscerally, same as the rest of us. Don't ever forget that.) As another court encouraged:
An advocate can present the cause, protect the record for subsequent review and preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics.
Why do lawyers, or anyone—congresspersons—need to be told this? A final hint from the courts on how to do it right:
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.
If you are a lawyer, don't write this stuff. If you are not a lawyer, don't write this stuff. If you hire lawyers, don't let them write it. If you hire lawyers, remember that in court, before a decision-making judge, your lawyer becomes you.