Using Language Like This Hurts Your Case
Many of you are lawyers; many of you hire lawyers. Lawyers are nice people—stay with me. One thing I love most about lawyers is that they work hard to be good at what they do (it’s not an easy way to make a living). But put them in a suit, hand them a briefcase, and say, "Go represent this guy," and they change personalities. It's like somebody performed a lobotomy and out with the frontal lobe went common sense. They start writing stuff like, "The Appellee brazenly claims . . . ." "Incredibly, the Appellee contends . . . ." "It is lame, circular reasoning for the Appellee to argue . . . ." "With amazing chutzpah and inexcusable gall, the Appellee suggests . . . ." Ironically, the lawyer who wrote those sentences was "the nicest litigator I've ever had a case against," according to opposing counsel. "Only when we got in front of the judge or wrote something for the judge to read, did he act like this." Put them in a suit, hand them a briefcase, and say, "Go represent this guy," and lawyers . . . .
As I have noted before, underneath the lawyerlike bluff and bluster dwells a pretty nice person, a volunteer, a coach, a good neighbor who gives back to the community, back to the profession. But tell me why anyone not suffering from temporary insanity would write in a brief:
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 the subject matter of the case: bolts of cloth in a warehouse? And why would any sane person write the following 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 example has kept me awake at night, trying to picture it. But nothing comes to mind.
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. They write it because they are grandstanding for a client, who is paying the 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 judges 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, the 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—representatives in congress—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.
When I was teaching a writing program for the judges of the Ninth Circuit, they told me two sure-fire ways to tell that a lawyer has no case:
1. she asks for more pages to continue rambling;
2. he gets shrill, haughty, cute, and feigns disgust.
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. You don't want that judge not to like you because she doesn't like how your lawyer waxes hyperbolic and disrespectful in a brief. For which you paid money. A lot of money.
And if you really want your lawyers to be effective on your behalf, insist they get WordRake to make their briefs to irascible, overworked judges more clear and concise. WordRake was the first editing software created for the legal profession six years ago. It gives your lawyers an advantage, and they can try it for free for seven days by clicking here.