Good Faith and Appellate Advocacy

A tip to advocates from today’s opinion by Judge Kethledge in Big Dipper Entertainment v. City of Warren:

[The appellant] criticizes [the district court’s] finding in notably harsh terms, asserting that the district court “made no pretense” of applying the proper summary-judgment standard, that the court’s analysis of the issue (in a 32-page opinion) was “cursory,” that the court “chose to disregard” the “voluminous and detailed analysis” set forth in the report of [the appellant’s] expert, Bruce McLaughlin, and so on. ([Appellant] similarly accuses opposing counsel of making “egregious misstatement[s]” to this court, etc.)

Arguments like these—which casually impugn the motives of the district court or, more commonly, opposing counsel—are regrettably common of late. So we think it worthwhile to comment on them. In our view, a party should think twice about questioning the district court’s integrity or that of opposing counsel. That two persons disagree does not mean that one of them has bad motives. And even in the worst cases, the better practice is usually to lay out the facts and let the court reach its own conclusions.

UPDATE: Judge Kethledge’s opinion also has this tip for the political scientists:

Democracies need political debate more than they do topless bars in order to function.

Also, in response to Judge Cole’s dissent, in which Judge Cole claims that the majority is missing the point and that “the beaches of Normandy lie elsewhere” — which I gather means the proper battle ground for the decision is elsethere — Judge Kethledge replies:

Where the dissent actually finds itself, however, is at Pas de Calais.

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