"There Are Good Reasons Not to Disparage Your Opponent, Especially in Court Filings"

A reminder from Judge Thapar that insults and invective are no substitute for argument.


Today the U.S. Court of Appeals for the Sixth Circuit decided Bearden v. Ballad Health. As the brief opinion makes amply clear, the judges did not think much of the appellant's advocacy. The opinion by Judge Thapar begins:

As our court has previously explained, there are good reasons not to disparage your opponent, especially in court filings. "The reasons include civility; the near-certainty that overstatement will only push the reader away . . . ; 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." Bennett v. State Farm Mut. Auto. Ins. Co., 731 F.3d 584, 585 (6th Cir. 2013) (cleaned up). The most important reason here is that counsel's colorful insults do nothing to show that his clients have standing to bring this lawsuit. We affirm the district court's dismissal for lack of jurisdiction.

And what sorts of insults were at issue?  A few examples from the opinion:

  • That MEAC "surrendered to [Ballad] much in the manner Marshal Petain surrendered France to Adolph Hitler." R. 48-1, Pg. ID 942.
  • That the Ballad merger was an "Octopus which was birthed by [two individuals] on one of the local golf courses while [they] were walking down the 'green fairways of indifference,' to the health, safety and welfare of millions of people." Id.; see also id. at 949 (referring to the merged entity as "the Levine-Greene Octopus").
  • That Ballad and MEAC are "intertwined in an incestuous relationship, the likes of which have not been seen since the days of Sodom and Gomorrah." Id. at 950; see also id. at 943 (describing the defendants as in "an incestuous, antitrust relationship").
  • That the Tennessee Department of Health's failure to supervise the defendants "is akin to the Tennessee Bureau of Investigation allowing criminals to rape, murder, pillage, loot and plunder on its watch, while its agents stand by." Id. at 951.
  • That "a virus has been effectively introduced into the Ballad Board which has sickened all 11 directors, and which requires their permanent quarantine." Id. at 954.

And that's only some of it.

Not only does the Court reject the appellants theory of standing, Judge Thapar adds this cautionary note at the close of his opinion.

One last note. Like the district court, we take a moment to remind plaintiffs' counsel that, as an officer of the court, he is expected to treat other parties in the case (as well as their counsel) with courtesy and professionalism. "Careful research and cogent reasoning, not aspersions, are the proper tools of our trade." U.S.I. Props. Corp. v. M.D. Constr. Co., 860 F.2d 1, 6 n.2 (1st Cir. 1988). That is of course not to say that legal documents must be written in dry legalese. Nor is it to criticize passionate and forceful advocacy in aid of a client's cause—a lawyerly virtue that counsel has displayed at points in this litigation. But just as one cannot "equate contempt with courage or insults with independence," we cannot dismiss the disparaging statements in this case as mere stylistic flourishes or vigorous advocacy. Sacher v. United States, 343 U.S. 1, 14 (1952). Counsel will best serve his clients if he remembers this going forward.

This is all good advice, though I am not sure appellant's counsel will want to hear it.

NEXT: Laws Protecting Private Employees' Speech and Political Activity Against Employer Retaliation: Introduction

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  1. I think this one shows what the problem is:

    “intertwined in an incestuous relationship, the likes of which have not been seen since the days of Sodom and Gomorrah.”

    This is rhetorical overkill. You can say that two corporate parties that were overly close to each other were in an “incestuous relationship”. It’s possible I have used that in a brief.

    But you don’t need to extend the metaphor. Extending the metaphor makes it look less metaphorical and more like you are saying “no, I mean it literally, these people are committing incest just like the Sodomites did!”.

    Counsel needs to calm down. Use enough figurative language to make clear your disapproval of things the other side did, but no more than that.

    1. It also helps to include what it is not, to show that you understand how normal people and entities behave. “This is not a typical collaboration between entities A and B, in which (explain what normally happens); this is an incestuous relationship that violates the Clayton Act.”

      When it’s nothing but rhetoric, it starts to sound like the counsel would say that about any opponent.

      1. Excellent point!

    2. I think the bibilical reference was to Lot having sex with his daughters after they left Sodom. They got him drunk and had sex with him because they were hiding out and the girls didn’t have access to other men. Genesis 19. That was the beginning of the Moabites and the Ammonites.

  2. There is no such thing as “pushing the reader away.” Either the substance of the argument is correct or it is not. Here, the appellant had no standing. That was clear. Had the appellant been correct, no matter how offensive his brief, the court would have had no basis to rule against him. Like it or not, the foundation of our legal system is rooted in Western Civilization, which in turn rests on logos. Relying on “credibility” or “emotion” is entirely improper and dangerous.

    1. And if judges had a different human nature from everyone else, that would be a good point.

    2. Being indisputably correct is certainly the best position for a lawyer to be in. And I agree that it’s unlikely that editing could have saved this claim. But many legal questions don’t have a clear answer, and for better or worse many arguments are not assessed on substance alone. Moreover, there are situations where there is no “correct” answer, and the judge has wide discretion over how to rule. One such situation is when to what extent to impose sanctions or attorneys fees for bad conduct—a scenario that this particular lawyer may want to be especially sensitive to, given his history.

  3. A quick search about the attorney involved reveals that this should not be unexpected.

  4. I’m glad to see that in the time I’ve been a lawyer the profession (including judges) have moved more toward my way of doing things. Lay out the facts (though of course in a way that favors your side) and hold off on the purple rhetoric. In the early days this attitude worked against me. A good lawyer was a verbal flamethrower who played dominance games with his adversary like two middle school bullies at recess.

  5. This is super tangential, but is anyone else bothered by the “cleaned up” parenthetical Judge Thapar uses? I’m highly suspicious of any altered quote, and not leaving any hint to the reader as to what you’ve changed seems like bad form to me. If the quote is so unusable that you don’t have room to explain how you altered it, that’s a sign that it’s either a bad quote or you’re torturing your precedent to say something it really doesn’t. (not asserting that’s what the judge did here, I just don’t like his bluebooking). Is this a common parenthetical in the Sixth Circuit and I’m just not familiar with a local quirk?

    1. Cleaned up is a relatively new signal, and it does not allow changes to substance. Only to things like quotes, brackets, ellipses, etc.

      See this article for an explanation of its origins from its inventor.

    2. I’ve cleaned up quotes for years. If a court is quoting another court, even if only occasional words and with brackets adding connecting words or a change to lower-case, that entire sentence becomes the new court’s sentence, and when citing that sentence, no bracketing or citation is needed, unless you want to point it out.

  6. I just wonder which law school trained the author of the offending brief. If the ABA’s accreditation committee was doing its job, it would actually be trying to find out.

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