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How to Annoy a Judge Through Excessive Rhetoric:

From Live Nation Motor Sports, Inc. v. Davis, 2006 WL 3616983 (N.D. Tex. Dec. 12):

[T]he court notes that Davis's statements are generally defiant and full of inappropriate hyperbole that do not assist the court in determining the facts. Here are a few examples from Davis's Mot[ion[] to Quash: "Defendants DO NOT ACCEPT these "Supercross LIVE!" copyright labeling by Plaintiff." "Plaintiffs have come roaring into this federal court with the overwhelming force and the ethics, or lack thereof, of Ghengis Khan." "Plaintiff has the gaul [sic] to ask this court to affirm its spoils with a partial summary judgment and preliminary judgment." "A lie repeated five (5) times becomes the truth. Ten (10) times is this Plaintiff's version of the truth in this complaint."

My sense is that judges are generally much more moved by calm argument than by fulmination -- and more moved by normal text than by ALL CAPS.

Asher (mail):
A lawyer didn't write that. Or if they did, they went to Thomas Cooley. That's just ridiculous.
9.5.2008 6:02pm
Bruce Hayden (mail) (www):
I would agree, for the most part. My limited experience is that at least screaming about opposing counsel and how unethical and vile they are is more to intimidate them than to impress the judges.
9.5.2008 6:04pm
Cornellian (mail):
Asher, you'd be surprised how many lawyers seem to think that constitutes vigorous advocacy, even though it's really just stupidly shooting yourself (and your client) in the foot.
9.5.2008 6:04pm
Jeff R.:
Is there anyone, anyone whatsoever in the country, who is more persuaded by text in ALL CAPS than normal text? I ask this as a serious question, because if the answer is actually "no", then why in the world do presumably serious local and state political workers, in composing the "Pro", "Con", and various rebuttals for the initiatives in the voter information guides each election season (at least in CA) all use the device at all, let alone to the excess that they do?

(My person criteria for voting on any such issue that I don't have a prior opinion on is to go for the side with the least words Capitalized...)
9.5.2008 6:06pm
Dave Hardy (mail) (www):
An attorney here in Tucson has on his wall a handwritten transcript from a trial in the 1890s. The attorney was famed as an orator in the florid Victorian style. It goes something like this:

I am, as always, flattered to have the opportunity to appear before your Honor, whose legal sagacity compares to the of Solon or Hammurabi, whose impartiality is known and praised from the headwaters of the Gila to....

THE COURT: Sit down, counsel. You can't blow smoke up this Court's ass.
9.5.2008 6:17pm
Virginian:
We are involved in a litigation right now in which the opposing counsel's briefs are replete with bold, caps, unerlines, and all three for the REALLY IMPORTANT POINTS (sorry, I can't do underline in my comment).

The case was transferred from the EDVa, and it is fortunate for this guy. None of the judges in the EDVa would have put up with this guy for very long.
9.5.2008 6:18pm
smitty1e:
Asterix the Gaul addressed the court?
9.5.2008 6:18pm
titus32:
Francophobia in a Texas judge does not surprise me.
9.5.2008 6:23pm
Steve:
On a related note, the insistence of some lawyers on repeating every number twice, even in colloquial sentences - such as "A lie repeated five (5) times becomes the truth" - is truly one of the dumbest things I encounter in practice. Yet I see it every day, even at my own law firm.
9.5.2008 6:28pm
great unknown (mail):
In public speaking class I was taught: if you have nothing to say, SAY IT LOUDER.
9.5.2008 6:30pm
D.A.:
I've got to disagree with asher.
We're seeing that quite a bit in one of our cases, and the other side doesn't seem to recognize that it's annoying the judge more and more all the time. This is good for us.
9.5.2008 6:41pm
KWC (mail):
Did Palin write this brief?
9.5.2008 6:41pm
Modus Ponens:
Here's hoping that your co-conspirators OK and DB read this post and take its message to heart.
9.5.2008 6:54pm
Bill Poser (mail) (www):
I think the court should also have admonished Davis for defaming Genghis Khan. By the standards of his time his ethics were probably better than average. He actually believed in the rule of law, did not discriminate on racial or ethnic grounds, and tolerated a variety of religions.
9.5.2008 6:56pm
Asher (mail):
Asher, you'd be surprised how many lawyers seem to think that constitutes vigorous advocacy, even though it's really just stupidly shooting yourself (and your client) in the foot.

It's not the caps that blow me away, it's the 'gaul' and the bad grammar. "Defendants do not accept these... labeling." These should be this. Or that last nonsensical sentence, "ten times is the version of the Plaintiff's truth in this complaint."
9.5.2008 6:56pm
bad imitaiton (mail):
Is there anyone here who thinks "blowing smoke up my ass" was a locution in use in the 19th century?
9.5.2008 6:59pm
Mailman:

Did Palin write this brief?


No, McCain.
9.5.2008 7:02pm
Anderson (mail):

What annoys and astonishes *me* is assertions in a brief, supported by citations to the record ... that absolutely fail to check out.

I don't mean "open to interpretation," I don't mean "the page # was a typo," I mean "not there, period." (Or, as I began to write, NOT THERE.)

We pointed out 8 or 10 instances of this in a recent reply brief, and I just can't imagine what the court will think of opposing counsel. Though I'm afraid they see this kind of thing too often to care.
9.5.2008 7:15pm
Railroad Gin:
A lot of clients think this nonsense is great advocacy. In small communities across the country there's always a lawyer who's considered a joke by the legal community but who rakes in the dough putting on show in court with namecalling and so forth. The client actually ends up worse off, but they usually don't realize it. And it just further solidifies the lawyers reputation as "the shark," "the wolf" or whatever. Its terrible legal practice, but I have to say it can be good business practice.
9.5.2008 7:28pm
Dilan Esper (mail) (www):
Steve:

The "legal" reason to repeat a number in parenthesis is to ensure that it is accurately reflected, say in an agreement or legal document. "Smith will pay Jones the sum of Twenty-Five Thousand Six Hundred Forty-Two Dollars and Twenty Cents ($25,642.20)". Same reason you spell out the amount of a check.

But I agree, when it is used for emphasis, it is stupid and unpersuasive.
9.5.2008 7:30pm
Guestov:
Anderson, that's got to breaking some unwritten code that says your only recourse is to make up law which counters the made-up facts of your opponent.
9.5.2008 7:34pm
Arkady:
Not to mention a client:


Martial, Epigrams

6.19 TO POSTUMUS.

My suit has nothing to do with assault, or battery, or poisoning, but is about three goats, which, I complain, have been stolen by my neighbour. This the judge desires to have proved to him; but you, with swelling words and extravagant gestures, dilate on the Battle of Cannae, the Mithridatic war, and the perjuries of the insensate Carthaginians, the Sullae, the Marii, and the Mucii. It is time, Postumus, to say something about my three goats.


Plus ca change...
9.5.2008 7:35pm
Eugene Volokh (www):
Modus Ponens: You know, we do offer a 100% money back guarantee for all readers who aren't completely satisfied with our style, substance, or typeface selection choices.
9.5.2008 7:44pm
Smokey:
Let's hear from a guy who got fabulously rich through his writing ability:

"I leave out the parts that people skip."

~ Elmore Leonard
9.5.2008 7:49pm
anon.:
"A lie repeated five (5) times becomes the truth. Ten (10) times is this Plaintiff's version of the truth in this complaint."
My favorite part is that he used this ridiculous "lawyerly" numbering in an aphorism.
9.5.2008 7:54pm
R Gould-Saltman (mail):
There are, unfortunately, unscrupulous lawyers at every level; unfortunately, most judges and justices have the view that they have other things to do than police these clowns.

I recently finished a protracted bit of child custody litigation with a fairly well-known opposing counsel, involving at least seven or eight court appearances spread out over the better part of a year. My opposing counsel were so prone to simply and flatly mis-stating material facts which were already in the written record before the court, mis-quoting the court's prior rulings, and shading half-truths (until they were more like quarter-truths) that by the last few court appearances, we devoted a separate section in each new document we filed, and I devoted a few minutes in each argument, calling attention to, and correcting, counsel's mis-statements, with citations to the record.

I assume that my opposing counsel was using this sort of tactic because it had previously been successful at least some of the time...

Did we get need-based fees? Yeah. Did we get a substantial amount of sanctions? Nope.
9.5.2008 8:22pm
LM (mail):
How much more can we take from these black-robed tyrants? That judge's astonishing disrespect(!) for the critical necessity and logical supremacy of hyperbole, redundancy, ALL CAPS and other vitally important rhetorical devices TOTALLY PROVES his pathetic ignorance of the internet, comic books and other cool technological innovations since the last time he cared enough to check.
9.5.2008 8:35pm
Curmudgeonly Ex-Clerk (www):
In my experience, fetishistic overuse of underlining, bold font, and/or italics for emphasis seems pretty common, even in workproduct from ostensibly good firms. I routinely see briefs filled to the brim with bolded italics in particular, though I almost never see ALL CAPS. But why not?

If "Dr. Smith unequivocally testified in his deposition that he 'still would have prescribed' the drug even if he had been provided with a more complete warning" is especially persuasive, then "Dr. Smith unequivocally testified in his deposition that he 'STILL WOULD HAVE PRESCRIBED' the drug even if he had been provided with a more complete warning" is even more so!

I'm really not sure what the thought process is, and I'm equally unsure how to go about dissuading my betters from this cherished practice. I've thought about circulating a memo suggesting that we have a paralegal use a gluestick and glitter to highlight super-duper important words in briefs.

Or, perhaps, we could train an army of capuchin monkeys, who would accompany all papers mailed to chambers, to perch on his or her honor's shoulder and clang a dainty pair of cymbals whenever it thinks the judge is nearing a critical word or passage.

Both strike me as ideas with TREMENDOUS POTENTIAL!!
9.5.2008 8:38pm
DavidBak (www):
LM: You forgot to add a smiley. :-)
9.5.2008 8:40pm
LM (mail):
That's because emoticons are totally bogus and no serious person would use them.
9.5.2008 9:46pm
LM (mail):
Curmudgeonly Ex-Clerk,

I agree they'd be better off leaving it all out, but I understand their perception that italics and bold can seem legitimate, while all caps makes the author look like a deranged blog-thread commenter.
9.5.2008 9:53pm
Alan Gunn (mail):

On a related note, the insistence of some lawyers on repeating every number twice, even in colloquial sentences - such as "A lie repeated five (5) times becomes the truth" - is truly one of the dumbest things I encounter in practice. Yet I see it every day, even at my own law firm.

I am a Court Appointed Special Advocate in child-abuse cases. My reports have to do numbers this way. Nobody will tell me why. They do let me use traditional grammar, syntax, and punctuation if I yell enough, though, so I figure the number nonsense is a small price to pay. (Oddly, our current director won't allow parentheses. Like these.)
9.5.2008 9:59pm
TerrencePhilip:
Footnote 1 of the opinion notes that Davis is a pro se litigant. They often are nutty. Sadly, however, most of us can probably think of a few lawyers capable of writing that badly.
9.5.2008 10:02pm
Brian G (mail) (www):
I see that all time in motions, including the use of exclamation points.

Actually response to Motion to Compel I got about 3 months ago. I just pulled it put and am copying word for word, except I am using Counterdefendant and Counterplaintiff in all places where the party is named.

Counterdefendant argues that because he was not named individually as a Defendant, he has had had a full and fair opportunity to depose the Counterplaintiff to investigate the claims made against him individually because the Counterplaintiff was deposed prior to his being named as a party. This is pure hogwash! Counterdefendant is a member of the corporation. As everyone who has actually taken the bar exam surely knows, a corporation can only act through its members. As such, Counterdefendant is attempting to pull a fast one on the court by trying to take a second deposition of Counterplaintiff despite the clear knowledge that HIS CORPORATION'S ATTORNEY ATTENDED THE DEPOSITION AND ASKED OVER 10 PAGES WORTH OF QUESTIONS!!! If a corporation can only act through its members, and Counterdefendant is a member of the corporation, HOW CAN THE COUNTERDEFENDANT POSSIBLY COMPLAIN HE DID NOT GET A FAIR OPPORTUNITY TO DEPOSE COUNTERPLAINTIFF???!!! At a minimum, Counterdefendant's cousel should be sanctioned, and pay all attorney's fees and costs incurred as a result og being forced to respond to this disingenuous Motion.

I would have been fired if I filed that nonsense.
9.5.2008 11:03pm
Brian G (mail) (www):
I meant above "he has NOT had" a full and fair opportunity...
9.5.2008 11:05pm
Smokey:
This thread's not over yet, but according to the Iowa Electronic Market, LM is a 3:2 fave to win it.
9.5.2008 11:22pm
Hoosier:
I add simply: Never, ever use the phrase "or lack thereof" in any communication not adressed to my in-laws. Never ever.

It is bad. Bad, bad, bad.
9.5.2008 11:58pm
Houston Lawyer:
Writing the number four as "four (4)" is likely to lead you to write "four (5)" in a revision that makes its way into the final document. Then you are screwed. I avoid this repetition for this reason.
9.6.2008 1:00am
Public_Defender (mail):

We're seeing that quite a bit in one of our cases, and the other side doesn't seem to recognize that it's annoying the judge more and more all the time. This is good for us.


I agree. When I see a prosecutor write like that, it's a little sad for our profession, but great for my client.

My favorite is when, on a critical fact, the government's lawyer wrote that my assertion was not true. But she had misread the record, and my assertion was both unquestionably true and devastating to her case. I made sure I quoted it back with an "emphasis in original" notation. At least she didn't all cap it.
9.6.2008 7:15am
LM (mail):
(Smokey, I assume the usual split's OK?) ;)
9.6.2008 5:33pm
markm (mail):
With the scrambled grammar and misspellings, I suspected that was a demented pro se litigant, and TerencePhilip confirms this. But has a judge ever had counsel committed for a psych evaluation? I've heard of times when it seems appropriate.

As for the overuse of boldface, underlining, capitals, and exclamation points, I think this begins with the author wanting to make sure the reader doesn't miss the IMPORTANT POINTS. But then it progresses until a third of the document is emphasized, and rather than GUIDING THE reader to the important points, it just makes you want to skip the entire thing.
9.7.2008 10:37am