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"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.

|The Volokh Conspiracy |


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.