Apr
22
Hire a Gentlemen or a Lady as Your Lawyer, Not a Pit Bull
Submitted by Jack Pate under Litigation | Leave a Comment
Many attorneys appear to make a show for the benefit of clients. They may be abrupt, intransigent, theatrical, and overstated. Why? Some seem to genuinely believe a pugnacious demeanor is intimidating and effective.
No. Wrong answer. Actually it is just tiring. Its net effect is to drive out a desire for cooperation. Because such behavior creates a tax on activities, it drags down activity generally. For example, when a letter is filled with acrimony and accusation, attention is diverted from the issues at hand subject to resolution. The actual issues needing a response are often difficult to impossible to find in such communications.
I recall a particular litigation in which opposing counsel continually filled both pleadings and correspondence with accusations of impropriety, improper motives, violations of rules, and other invective.
By contrast, when I edit, I consciously try to remove adjectives from legal writing and speaking. Adjectives are useful descriptors in literature, such as describing a scene in a novel. However, outside of the factual adjectives like green and red, judgmental adjectives are the opposite of powerful writing and oral argument to a judge. I believe it impermissible to characterize opposing counsel as anything. I contend that it is impermissible to characterize their position with descriptive terms.
Why would anyone ever use judgmental adjectives such as “specious” and “spurious?” No motive, character, intent, nor action need be imputed to opposing counsel. None should be applied to their statements, representations, legal positions, or research.
An impartial judge has no way to use adjectives as inputs. Notwithstanding a court may occaisionally excoriate attorneys or their brief, that decision and the choice of language are selected exclusively by the judge. It is not to be invited or even hinted by opposing counsel.
Suggesting such language is to presume the court has no mind nor vocabulary of its own. Judges are quite literate, literary, and well read. They often have degrees in fields such as English, history, or political science. It must require extraordinary self control for judges not to admonish attorneys for their use of hyperbole. Nevertheless, they typically ignore it, do not even comment on it.
My opinion is that writing exists to inform the court of the law upon which it can rely, the facts on which it can rely, and urges a decision supported by both. Just lay out the law, the procedural rules, and the facts. Then urge the court to find in favor of a position strictly on the basis of the law and the facts.
Is it not much better to studiously avoid characterizations? But, do not expect any kudos from the court. Over time, facts are facts and will show as such. Decorum will mature into credibility and dignity.