Tone: Telling a Court It's Wrong
We sometimes face the delicate task of telling a court that its ruling was wrong and that it should reverse itself. This is a tightrope, and we sometimes lose our balance.
Let’s face it, no one likes to be told that they’re wrong, especially after they’ve gone to great lengths to make the right call. Admitting error just isn’t something we’re wired to do easily. And as professional as most judges are, I suspect that even they suffer some level of regret and embarrassment when they must reverse themselves. So when we ask a judge to admit error, our manners and tone are especially critical.
But sometimes we slip.
In a federal case pending in Texas, defense counsel recently asked the court to reconsider a ruling relating to a class action. Some sharp language made its way into the briefing. Although the court granted the motion, it also made clear that it was unhappy with defense counsel’s tone and provided a brief lesson in civility. Take note!
Before the court addresses the parties’ arguments, it addresses the statement of counsel for Defendants that the court’s prior interpretation was “nonsensical,” among other things. . . . The court takes no umbrage with an attorney disagreeing with its rulings, as at least one party will usually always be adversely affected by what the court does. Disagreement is not uncommon in a highly competitive legal environment. If an attorney believes that the court has made an incorrect ruling concerning a client, the attorney may take advantage of the appellate process.
Defendants’ attorneys’ tone and use of the word “nonsensical” are “beyond the pale.” The court considers the term “nonsensical” to be synonymous with “stupid” and the functional equivalent of using the term “B.S.” This understanding is supported by Merriam Webster’s Collegiate Dictionary. That Defendants’ counsel would display such effrontery to the court is astounding. In any event, if similar conduct recurs, the court will address such conduct with appropriate sanctions, as it will not tolerate such impertinent conduct. The court places the fault squarely at the feet of Defendants’ counsel, as they are responsible for filing documents, as well as the content therein, with the court. The court now addresses the substantive arguments made by the parties.
Forby v. One Technologies, LP, No. 3:16-CV-856L (N.D. Tex. Jul. 22, 2020) (all italics in original).
This is a keen reminder that we must always strive for an evenhanded tone in our briefing, if not a downright friendly one. This goes double for reconsideration motions, in which we must tell a court that its decision was wrong and its efforts largely wasted.
As I’ve said before, it costs nothing to be polite. Be likable!
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