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Commentary: Raging rhetoric can overshadow issues

We’ve all experienced it: You receive a motion, you begin to read its supporting brief, and the words slap your eyes: “spurious,” “not worthy of belief,” “incredible,” “utterly without foundation,” “wholesale abdication.” And that’s just the first page.

Many lawyers believe that a brief must contain extremely aggressive language to be convincing to the court. It is true that a brief is less likely to be successful if its arguments lack conviction. A forceful argument is one thing. A broad-brush attack and unprofessional name-calling, however, is quite another.

Judges want the facts and the law, without exaggeration, misstatement or diatribe. Still, a reasonable reaction to reading an overly argumentative brief, especially one personally attacking the client or attorney, is to want to respond in kind. Tempting as that may be, counsel should sit back and take a breath before beginning an “Oh yeah? Well, take this!” response.

Overly argumentative briefs are not good for the court, the parties or counsel. They unnecessarily elevate the already adversarial nature of a dispute, and overshadow a case’s real issues. The question, however, remains-how do you best respond to pages of vitriol masking as argument?

Some years ago, purely out of frustration, I stumbled onto a helpful technique which I use to this day. A young attorney then, I was reading a brief opposing one of my motions. I am embarrassed, but not surprised, that I no longer remember the case’s substantive issues. What I do remember is that I felt attacked by and angry at the seemingly unending pages of blistering adjectives and attack-filled nouns.

In frustration, I grabbed a yellow marker and highlighted every extreme word I saw. My angst vented, I turned back to the brief. Basically every third word was yellow. I thought for a minute, and then realized that my focus had been all wrong. The important thing was not what the brief said, but what it didn’t say. With all its harangues, the brief said a lot of nothing, and not much about anything.

I made a list of every point, every argument and every fact which was in my initial brief but about which opposing counsel’s brief was silent. I turned that list into my reply brief’s opening salvo. By detailing what was not in the opposition brief, I easily explained that brief’s weaknesses to the court. In doing so, I implicitly argued that those weaknesses extended beyond counsel’s brief to my opponent’s case as a whole. My reply stuck to the substantive issues and only those issues. It said not one word about the opposing brief’s overwrought rhetoric.

I am thankful for that particular motion, and that brief’s high level of bombast. Without it, I might still be sitting before my computer, red-faced, frustrated, and tempted to throw some bombast of my own.

I am not saying that a good brief is not argumentative. I also am not suggesting that untrue or legally inaccurate arguments should go unrebutted. But when the line is crossed, and professional argument turns into unprofessional diatribe, the best thing to do is to refuse to join the war of words.

DIANE SLOMOWITZ is a shareholder with the law firm of Fox, O’Neill & Shannon, SC in Milwaukee. She concentrates her practice on legal research, legal writing and appellate brief writing for the firm’s business and individual clients. Diane can be reached at 414-273-3939 or dslomowitz@foslaw.com.

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