Always Draft Angry Briefs. Never File Them.
Last spring, in How To Write Your Brief So That The Judge Will Hate You, I profiled a sarcastic and dismissive brief — filed by attorneys for West Publishing no less, in a case against a law professor — and concluded:
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.
… I was curious when I read numerous reports not long ago of a brief filed by Sidley Austin lawyers in a case in Illinois state court involving claims of innocence by convicted murderer Anthony McKinney. Working on McKinney’s behalf are students at Northwestern University’s Medill Innocence Project. State prosecutors served subpoenas on the students, seeking to obtain, among other things, video footage of a witness statement and the students’ notes. Sidley Austin filed a motion to quash the subpoenas on behalf of the students. Following the state’s response to the motion, Sidley submitted a reply brief. It was this reply brief that received so much attention.
… The judge then referred to the brief as "reprehensible," an "editorial" not fit for court, and "dripping with sarcasm." She also compared the brief unfavorably to one she had received earlier that day from a pro se prisoner.
Merenstein didn’t think much was wrong with the brief:
My primary conclusion after reading the brief a number of times is that the Sidley brief is well-written, to the point, devoid of irrelevant ad hominem attacks and quite persuasive. While I’ve seen sarcasm in many briefs (and cringed every time I read it), I looked high and low through the Sidley Austin brief and was unable to find anything remotely sarcastic in the brief. I’m also at a loss as to what is "reprehensible" about it.
I agree that the brief wasn’t "reprehensible," but it certainly wasn’t a model of courteous advocacy.
Let’s start with the first sentence:
The State’s response brief evinces a surprising lack of comprehension of the requirements of the Illinois Reporter’s Privilege Act (the ”Act”) and an equally surprising lack of affinity for the important First Amendment νalues that underlie the Act and the role of investigative reporting in promoting those values.
(Emphasis added.) Was it really necessary to accuse the flesh and blood representative of the State of Illinois of being too stupid to understand the state’s laws? To accuse them of disliking free speech?
The Sidley Austin lawyers could have just as easily written:
The State’s argument, if accepted by this Court, would void the requirements of the Illinois Reporter’s Privilege Act (the ”Act”) and would undermine important First Amendment νalues that underlie the Act and the role of investigative reporting in promoting those values.
Same ideas, but without insulting opposing counsel’s ability to "comprehend" the law.
Elsewhere in the brief, "The State must not understand the respective roles of government and the media in our society." The remark was simply gratuitous; it did nothing to enhance the argument that followed:
When the State discharges its prosecutorial powers, it does have strict disclosure obligations rooted in fundamental concepts of due process. Respondents have no such obligations. And while the maxim that ουr judicial system is entitled to "everyman’s evidence" has currency, ουr society has also long recognized that the fundamental role newsgathering provides in our society places special restrictions on access to unpublished newsgathering materials. "The reporter’s privilege has evolved from a common law recognition that the compelled disclosure of a reporter’s sources could compromise the news media’s first amendment right to freely gather and disseminate
information." In re Special Grand Jury Investigation, 104 Ill. 2d 419, 424 (1984).
A perfectly persuasive and cogent analysis marred by a gratuitous insult. Tisk, tisk.
We’ve all been there. We’ve all read briefs and heard oral arguments that were (at least to us) irrelevant, unfounded, or directly contradicted by controlling precedent or the plain meaning of the statute. The Innocence Project’s attorneys had every reason to be infuriated by the State’s subpoena: there’s no question the State demonstrated a surprising amount of contempt for Illinois’ Shield Law and for the fundamental free speech values embodied by that law.
But a brief is no place to question the intellect or motives of opposing counsel. Get mad, then get over it.
As James Fallows puts it: Always write angry letters to your enemies. Never mail them.
Always draft angry briefs. Never file them.