The Perils of Advocacy

Quick: List all the ways you can get into ethical hot water while writing a brief, and then list all the things judges can do to you in return.

Sometimes lawyers go too far, but do judges ever overreact?

I interview Judy Fischer, author of Pleasing the Court, on wayward lawyers and the angry judges who penalize them:

1. In your short and fascinating book, we meet all sorts of wayward attorneys who are in some way punished by courts for something they’ve done in a brief. One attorney called the members of an administrative board “monkeys” and compared their pronouncements to the “grunts and groans of an ape.” Another attorney neglected to mention an unfavorable case even though he himself was counsel in that case. Yet another referred to opposing counsel as “Nazis and redneck pepper-woods.” And various other attorneys drafted a proposed order with a first sentence that’s nearly four pages long, filed a complaint that the court called a “hideous sprawling mess,” cited a dissent as controlling authority, or copied another lawyer’s brief.

When you compare all these alleged ethical breaches with the penalties they provoked, what are a few of the behaviors that seem to irk judges most?

That depends on the judge. One judge was so annoyed by inadequately supported arguments that he called the lawyers’ work “minimalist analytic wizardry” written with “stubs of . . . crayons.” Another judge, exasperated by a pleading’s numerous spelling and proofing errors, repeated some “favorites,” chastised the lawyer for a “complete lack of care in his written product,” and cut his requested hourly fee in half.

If the yardstick is the severity of the consequences, the worst ones tend to occur where there are multiple violations. One lawyer was disbarred after committing a range of transgressions, including misrepresenting a case’s holding, insulting parties and the judge, and failing to proofread adequately. Another lawyer was suspended from the practice for misrepresenting cases, omitting relevant cases, and submitting incomprehensible briefs. These lawyers would probably not have received such severe consequences had they not included the morally troublesome substantive errors.

But I’d say lawyers should take care to file documents that are professional in every respect, because different errors may annoy different judges.

2. The punishments described in your book appear to fall into three categories. First you have concrete penalties assessed against the lawyer, such as contempt citations, flat monetary sanctions, assessment of fees and costs, or even suspension and disbarment. Next you have dispositive sanctions: a complaint is dismissed, a motion is denied. And finally you have “shame” penalties such as a nasty rebuke in a published opinion or in open court.

Can you give me an example of a particularly strange penalty? Or one that you thought was over the top?

Bradshaw v. Unity Marine Corp., the “minimalist analytic wizardry” opinion mentioned above, contains some extreme language, accusing the lawyers of writing like kindergarteners in crayoned briefs that carry the “odor of wet dog.” Some commentators have found that language gratuitous, and I agree.

Another unusual—but more measured—consequence was a court’s order to a lawyer who wrote frivolous discovery objections. He was required to write an article explaining why obstructionist tactics are improper and submit it to law journals for publication. (I have never been able to locate that article in print.)

3. That brings me to my last question. You mention in your book how former federal district court judge Samuel Kent, who wrote the Bradshaw opinion, was accused of harshness, even bullying, when he criticized lawyers (he called one brief “a gossamer wisp of an argument”). With so many ethical breaches in your book stemming from disrespectful conduct or rude language on the part of attorneys, should judges themselves be constrained at all in how they tar the offenders?

I do think judges should observe some decorum, and that includes being civil. After all, they are models for others in the courtroom and the legal system. But I don’t think some kind of sanction is the best way to promote judicial civility. Raising consciousness is probably a better approach, and I hope my book is a step toward that end. And judges might consider that a party would prefer not to see his or her case devolve into a forum for judicial humor or pique.

Order Point Made

Order Point Taken

Order Deal Struck