My interest was piqued by this story in The Legal Intelligencer

In a federal lawsuit, professors David Rudovsky of the University of Pennsylvania and Leonard Sosnov of Widener Law School claim that the December 2008 supplement, or "pocket part," to their book, "Criminal Procedure — Law, Commentary and Forms," was so poorly researched that it will harm their reputations if allowed to remain on library shelves.

In an injunction hearing Tuesday, the professors’ lawyer, Richard L. Bazelon of Bazelon Less & Feldman, argued that West should be ordered to notify all recipients of the supplement that Rudovsky and Sosnov were not the authors and that any unhappy customers may demand a refund.

[U.S. District Court Judge John P.] Fullam said he had just finished reading Rittinger’s most recent brief in the case and said, "I’m disheartened by the tone of it — and you seem to be following in that same tone here today."

Adopting an almost somber tone himself, Fullam delivered a short lecture on manners.

"I’m much less interested in whether you have a reason to be angry with your opposing counsel and much more interested in the merits of the case. I don’t take kindly to briefs which attack opposing counsel and make snide comments right and left, and yours do. And you’re doing the same thing here today — you’re more critical of your opponent than you are of the facts of the case," Fullam said.

So I jumped on PACER and looked at the offending brief, which I’ve uploaded here.

Here’s part of the introduction:

In short, plaintiffs are unhappy with West’s editing and publishing of the 2008-2009 pocket part – including the fact that plaintiffs’ names are listed as co-authors on that pocket part along with West’s "Publisher’s Staff’ – and plaintiffs want this Court to order West to publish to the world that the 2008-2009 pocket part cannot be relied upon for any purpose.

Plaintiffs’ requested injunction should be promptly denied because, among other reasons, plaintiffs face no irreparable harm and have no likelihood of success on the merits of their claims. Putting aside for the moment the sheer over-breadth and vagueness of what plaintiffs mean when they ask the Court to enjoin West from "using" the Treatise – which in and of itself is a reason to deny the injunction – the plaintiffs’ request lacks legal merit.

Emphasis added. West’s argument has four sections, corresponding with the four elements of a preliminary injunction:

To justify a preliminary injunction, a district court must be convinced that the moving party has established: (i) a likelihood of success on the merits; (ii) that it will suffer irreparable harm if the injunctive relief is not granted; (iii) that the harm suffered by the moving party absent the requested injunction will outweigh the harm to the nonmoving party if the injunctive relief is granted; and (iv) that the public interest favors granting the injunctive relief. Shire U.S. Inc. v. Barr Laboratories Inc., 329 F.3d 348, 352 (3d Cir. 2003).

Here’s how the respective sections end:

  1. Based on the foregoing, if there ever was any harm to plaintiffs (and West disputes that there ever was any), that harm was cured by the March 2009 letter and the 2009 Cumulative Supplement, and any assertion by plaintiffs to the contrary is merely a poor attempt to feign irreparable injury.
  2. For all of these reasons, plaintiffs’ defamation claim is specious and not likely to succeed.
  3. Because West will face great harm if the requested injunction forcing West to act is granted, and plaintiffs would suffer virtually no harm from the denial of their motion, the balance of the harms weighs heavily in favor of West.
  4. Plaintiffs, nonetheless, continue to press their unmeritorious claims, resulting in the waste of much time, money, and resources by both the parties and now the Court. The public interest would be better served by denying plaintiffs’ obviously unmeritorious motion for an injunction.

(Emphasis mine).

Outrage and scorn are not wholly forbidden in front of a judge or a jury but you have to earn it.

An opening brief filled with sarcasm will perturb a judge doing his or her best to reserve judgment until they’ve heard both sides just as much as an opening statement filled with indignity will repulse a jury doing their best to be fair and impartial until they’ve heard all of the evidence.

  • Thanks for the post. I see this kind if thing a lot in the state district court. You also see attorneys misstating evidence or using the phrase, “It is undisputed that…” when the alleged fact is clearly disputed. I would guess most judges just ignore this type of language. But, it is very irritating to have to respond the statements, because you don’t know what a judge is considering.

  • How to avoid alienating the judge

    Courtesy of Evan Schaeffer, here is something every briefwriter needs to know—or to be reminded of: Judges don’t like to see lawyers belittling the other side. That is the lesson of this post by Maxwell Kennerly at Litigation and Trial….

  • Barry

    I’m not a lawyer, but have represented myself in federal court and read numerous briefs and the only issues I see above (out of the bold parts) are the phrases:
    “any assertion by plaintiffs to the contrary is merely a poor attempt to feign irreparable injury”
    and
    “obviously unmeritorious.”

  • Stephen Vivian

    It is interesting to note that lawyers around the world make the same mistakes. We tend to forget that we must advocate our client’s case and not simply attack our professional opponents. In my experience, such an approach almost never pays dividends.