Lawyers beware: You may face public ridicule or worse for loose claims of "frivolous" litigation tactics by your opponent. Courts are becoming increasingly wary of hyperbole, personal invective, and discourtesy in legal arguments. During this holiday season, it’s not a bad idea to reflect on how we all might raise the level of discourse in the legal profession, for our benefit and the benefit of others.
We all face arguments we think are frivolous
When it comes to advocacy, we all think we are right, and the other side is wrong. Sometimes we hold those convictions so strongly that we are dismissive, and perhaps even a little contemptuous, of our opponent’s arguments.
So what do you do when the other side really does make a ridiculous or frivolous argument? Pause, take a deep breath, and think twice before putting your thoughts on paper. Why? Two recent circuit court decisions counsel against accusing opponents of making "frivolous" arguments.
Courts criticize incivility in legal arguments
The 6th and 7th Circuits recently raised the bar for lawyer civility, discouraging ad hominem attacks in which lawyers accuse each other of making "frivolous" or "ridiculous" arguments.
In a widely noted decision, the 6th Circuit recently admonished that: "There are good reasons not to call an opponent’s argument 'ridiculous,' which is what State Farm calls Barbara Bennett’s principal argument here. The reasons include civility; the near-certainty that overstatement will only push the reader away (especially when, as here, the hyperbole begins on page one of the brief); 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.' But here the biggest reason is more simple: the argument that State Farm derides as ridiculous is instead correct." Bennett v. State Farm Mut. Auto. Ins. Co., 731 F.3d 584, 584–85 (6th Cir. 2013) (internal citation omitted).
The 6th Circuit reversed a grant of summary judgment for State Farm and instead directed that judgment be entered for the plaintiff whose argument was derided by State Farm as "ridiculous," holding that the insurance policy provided coverage for Ms. Bennett because she was hurt in an auto accident and found herself thrown "on" the front hood of the driver’s Ford Fusion. See id. at 585–86. The policy at issue provided coverage for persons injured while "occupying" a car, defined as "in, on, entering or alighting from a car." See id. at 585. The appellate court made short shrift of State Farm’s argument that the injured plaintiff was not occupying the Ford Fusion when she landed "on" the hood, noting that "on" the hood was covered in the policy. See id. at 585–86.
The 7th Circuit recently cited to Bennett in rejecting cross-motions for sanctions in a case where a real estate agent failed to pay a commission owed to his company. See First Weber Grp., Inc. v. Horsfall, 738 F.3d 767, 778–79 (7th Cir. 2013) (citing Bennett, 731 F.3d at 584–85). The 7th Circuit criticized the parties for their lack of civility, taking the "opportunity to caution the parties and the bar that they should not lightly label their opponents’ arguments as frivolous." Id. at 779.
These recent federal appellate court decisions should rekindle interest in the conventional wisdom that lawyers should stick to the facts and the law and avoid "pounding table" or engaging in legal histrionics. As Judge Alex Kozinski of the 9th Circuit famously wrote in his 1992 lecture about ways to lose an appeal:
"One really good way of doing this is to pick a fight with opposing counsel. Go ahead, call him a slime. Accuse him of lying through his teeth. The key thing is to let the court know that what’s going on here is not really a dispute between the clients. No, that’s there just to satisfy the case and controversy requirement. What is really going on here is a fight between the forces of truth, justice, purity and goodness—namely you—and Beelzebub, your opponent.
"The reality, you see, is that most legal disputes are dreary dull, but everyone loves a good fight, particularly when the gloves come off. I often find myself chortling with delight when I read a passage such as this from a recent appellee’s brief:
"With all due respect for my colleague, I have to tell this court that it’s been told an incredible fairy tale, packed with lies and misrepresentations."
"Of course, the other lawyer responded in kind. Pretty soon I found myself cheering for the lawyers and forgot all about the legal issues."
Alex Kozinski, The Wrong Stuff, 1992 B.Y.U. L. Rev. 325, 328 (1992).
Judge Kozinski was absolutely right – if the other side is a stinker, you don’t need to tell the court that – it will figure it out. If the court doesn’t see it, you’re not going to look very good when you try to point out that which is not obvious.
Lawyering is hard enough without injecting personal invective and emotion, and lawyers should take heed that sharply-worded prose might mar an otherwise credible legal argument.
Professional discipline for incivility
If undermining your legal argument is not sufficient reason to avoid incivility in practice, professional discipline should be a deterrent. Under the Model Rules of Professional Conduct, disrespectful, degrading, or disparaging conduct towards opposing counsel may cross the line from acceptable zealous advocacy into unethical conduct. See Model Rules of Prof’l Conduct Preamble, cmts. 5, 9 (providing that counsel is expected to show respect for the legal system and that lawyers should "maintain a professional, courteous, and civil attitude toward all persons involved in the legal system"); Model Rules of Prof’l Conduct Rule 12, cmt. 1 (providing that "[t]he lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect"). Such conduct is not only unprofessional, but is beyond the boundaries of propriety. Incivility and overuse of the term "frivolous" may not only be chastised in court decisions, but may invite attorney discipline and undermine your reputation in the legal community at large.
Benefits of civility in practice
Aside from these most obvious reasons that lawyers should act civilly, a number of less apparent benefits accrue from civil conduct – reputational gain and career damage avoidance. Incivility often adds nothing to the service of client interests and case objectives, and instead, incivility may undermine the success of lawyers’ practices. Resort to incivility may make it more difficult to resolve client disputes, which in turn may increase legal fees, and undermine client trust and public respect for the legal profession.
Lawyers who exhibit civility and professionalism develop more congenial working relationships with opposing counsel. Simply put – they are more effective because they have good working relationships with their opposing counsel. These lawyers may be rewarded for their civility with referrals from opposing counsel, respect from the bench, and personal satisfaction and professional fulfillment.
A call for increased civility
Where does the bar go from here? This is a question that lawyers across the country will decide. As the recent decisions by the 6th Circuit and 7th Circuit illustrate, the bench is increasingly intolerant of lawyer incivility, and indeed, has raised the standard for what constitutes uncivil behavior. State and local bar associations are also strong proponents of improvement in lawyer civility. These associations recognize that the diminution of lawyer civility undermines our legal associations, our profession, and the law as an institution.
As Minnesota attorneys, we take an oath to conduct ourselves "in an upright and courteous manner." See Minn. Stat. § 358.07(9). That oath is a commitment to how we must conduct ourselves not only with our clients and the court, but also with our fellow attorneys. During this holiday season, let us seek a rebirth of civility.
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