Asked and Answered: The Pros and Cons of Insulting Judges

David Giacolone of the valuable legal ethics blog ethicalEsq? (which you will find added to the links list to your left) has propounded a question in the general direction of this blog and, seeing as how we are in a service profession, I will respond as best I can.

Twice in the past month, David has found himself writing about irresponsible carrying on by insurance defense attorneys in their appellate briefs. First, in this July 27 post, he caught up with the case of Michael Wilkins, an attorney in Indiana who woulnd up on the receiving end of disciplinary action by that state’s Supreme Court. Wilkins had been representing Michigan Mutual Insurance Company in a coverage dispute. The case went against his client at the trial level and again in the Indiana Court of Appeal. In his petition seeking review by the Indiana Supreme Court, Wilkins included an ill-advised footnote in which he characterized the appellate opinion as being “so factually and legally inaccurate that one is left to wonder whether the Court of Appeals was determined to find for [Michigan Mutual's opponent] and then said whatever was necessary to reach that conclusion.” [Underscoring by ethicalEsq?.] The Supreme Court found this to be a “scurrilous and intemperate attack on the integrity” of the lower court, and responded with a disciplinary thunderbolt, resulting in Wilkins’ suspension from practice. (David's post on the case dives deep into the First Amendment aspects of the dispute, among others.)

And earlier this week, in this post, David notes another example. In a case that I also noted here -- in which the appealing insurer’s counsel failed to include any portion of the disputed insurance policy in the appellate record -- the court again took counsel to task for tossing accusations at a lower court:

One final point. Baseless attacks on the integrity of the district court are inappropriate even in offhand conversation. Here, Travelers' brief could easily be read as accusing the district court of misconduct, rather than simple legal error. Travelers' counsel must exercise greater care in the future. The record contains nary a hint of impropriety by the trial judge.

Underscoring is mine. And of course part of counsel’s problem in that case was that the record seems to have “contained nary a hint” of any other useful information, either.]

From these two instances, David suggests that something is amiss in the insurance defense/coverage bar and sends out this question:

What's up? I'm thinking some smart-aleck appellate lawyer wrote a snappy, irreverent footnote a few years ago, and it has been floating around the insurance defense bar ever since, passed on from one frustrated, smirking scribe to another. Maybe it's even become ill-conceived, hyperbolic, anti-bench boilerplate.

I'm hoping that insurance-oriented blawggers (e.g., Doug Simpson at Unintended Consequences, Dave Stratton at Insurance Defense Blog, or George Wallace at Declarations and Exclusions) will find the source of the footnote. Even if we never know the original miscreant, let's hope the offending words and notions have been deleted from word processing documents across the insurance defense bar.

I think David is too willing to detect conspiracy in this case. So far as I know or have been able to determine, there is no pre-fab footnote being shared among insurance counsel to be trotted out when one of us feels the urge to suggest that a lower court judge was not merely wrong, but crooked. And there is a simple reason for my belief that the thing Does Not Exist: Why circulate an all-occasion anti-judicial j’accuse when very few insurance attorneys would be foolish enough to use it? It is to be hoped that very few attorneys, period, regardless of their field of specialty, would succumb to that temptation.

There are few things better calculated to turn a court against you -- and thereby to cause serious harm to your client’s case, regardless of its substantive merit -- than suggesting that a judge has willfully ignored the facts or the law, or worse. Even if the attorney making the accusation avoids discipline, as he or she likely will in all but the most extreme cases, there will almost never be any short- or long-term advantage to be gained by stooping to that tactic. As most attorneys learn early on, judicial decisionmaking involves a lot of close calls, in which the court exercises a broad discretion to decide which of several possible interpretations of the facts or the law to adopt. Once a court has been turned against the advocate by an ill-conceived attack on its integrity or intelligence, it is that much harder to persuade the court to make those close calls in favor of that advocate’s position. Judges have long memories, especially for attorneys who appear regularly in their courtrooms, and to lose the judge’s trust by the use of such a cheap shot can only harm future clients’ interests. (By the same token, developing a reputation for playing it straight with the court even in a losing cause can earn the advocate the benefit of the doubt in future close cases.)

Yes, I believe there are cases in which a judge actually does adopt a result-driven approach that leads to his or her outright ignoring compelling evidence or a legitimate legal argument. I also believe those cases are more rare than not. When presenting such a case on appeal, a direct attack on the judge in an appellate brief is less likely to succeed than is a carefully argued, well-documented tour of the record, demonstrating to the appellate panel just how far wrong the lower court was on the record actually before it. In the even rarer case in which a judge has genuinely crossed the line toward unethical or corrupt conduct -- something I have not personally encountered -- I tend to think that the issue is better handled through judicial discipline procedures than in an appellate brief.

So, there is a rather longwinded response to David’s inquiry. He has already given the short answer himself: "Attacking a judge's integrity in a footnote is both tacky and bad strategy." True, true, true.

Thanks to David for thinking of this blog when he came up with that question. I will update this post with links to any other responses he draws.

Comments

[David Giacalone]

George, Thank you for your excellent AND expeditious response. I agree with everything you said.

Of course, although my point was serious, my "accusation" was made with tongue-in-cheek (a position my tongue often seems to take after too many days covering heavy topics).

It's good to see that I'm not the only blawgger who's postings are more than two sentences long. I hope we get the chance to correspond frequently.

[Dave Stratton]

The morale of the story is: don't use footnotes in appellate briefs! :)

A 30 day suspension for a stupid footnote is a bit harsh, but I guess them's fighting words in Indiana.