St. Louis area lawyer Evan Schaeffer has a good post on his Trial Practice Tips Weblog (one of my favorites) at http://www.illinoistrialpractice.com/2009/05/writing-for-the-court-control-your-outrage-and-scorn.html how snide or nasty remarks in briefs nearly always backfire, disposing the judge against you and your arguments (and, therefore, against your client as well) instead of helping the judge to see things your way.
Schaeffer gives credit to Philadelphia lawyer Maxwell Kennerly, who writes the Litigation & Trial weblog, at http://www.litigationandtrial.com/2009/04/articles/litigation/ideas/how-to-write-your-brief-so-that-the-judge-will-hate-you/ for his post; Kennerly, in turn, looked up the brief in question after reading an article in the (subscribers only, alas) Legal Intelligencer and thoughtfully posted it here http://www.scribd.com/doc/14293105/Rudovsky-v-West-Reply-to-Ptls-Motion-for-Injunction for all interested parties to read.
Lawyers should take both Kennerly’s and Schaeffer’s conclusions to heart. Says Kennerly: “An opening brief filled with sarcasm will perturb a judge doing his or her best to reserve judgment until they’ve heard both sides just as much as an opening statement filled with indignity will repulse a jury doing their best to be fair and impartial until they’ve heard all of the evidence.” For his part, Schaeffer comments “Kennerly’s post stands as a good reminder to all of us who write for judges–judges who are always more interested in the facts and the law than our own belly-aching about the other side.”
As an administrative law judge, I saw snide remarks in briefs and oral arguments more frequently than I would have liked, and can attest that Kennerly and Schaeffer are dead on in their conclusions. I’d add that what’s true in court holds in the rest of life as well.
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