Everybody Must Get Tone

by Howard Posner

The lack of merit in Defendant's motion is underscored by the sarcastic and demeaning tone of the motion. When one is compelled to resort to such unprofessional tactics, it usually is to cover up a lack of substance to the motion itself. That is definitely the case here."

These sentences got my attention, because the "sarcastic and demeaning" writing in question was mine. In theory, opposing counsel was absolutely right. Tone is telling. Tone is important, at least if you're writing to persuade (if you're writing, say, a testamentary trust, it's probably not critical). Animosity and ad hominem attacks are self-defeating. Judges know that lack of substance often lies behind sarcasm and, er, demeaningness. Demeanosity. Whatever.

But as a practical matter, opposing counsel's three-sentence objection was a mistake for a bunch of reasons. For one thing, as I'm sure you can tell, I'm the soul of civility. Far be it from me to demean or, er, sarcastify. Sarcasticize. Sarcastigate. Whatever.

For another, if a document's tone is unnecessarily nasty, it's pointless to carry on about it. It makes you look like a whiner. Of course, given the ratio of whiners to the total number of lawyers, the odds are good you actually are a whiner, but I digress. If you can't parry an overheated attack with a brief, nonchalant explanation of the specific reasons why your opponent's position is hopeless (along the lines of "Plaintiff's repeated attacks on Defendant's motives and morality are a way of avoiding discussing the statute of limitations that bars his action"), you're probably better off ignoring, and thus rising above, the unpleasantness.

And if your opposing counsel's tone is offensive, the judge will probably notice it. Judges are pretty sensitive to over-the-top argument, and they usually know when loudness replaces reason. I suspect they also have a pretty good sense of when scorn is appropriate. The whimper of protest that began this column came in response to an attack on a cross-complaint that alleged no facts?literally, none at all?which is quite a feat. I pointed this out, then wrote that its drafter seemed "to have copied a form book without filling in the blanks," producing something that was "not so much a complaint as a stump speech, useful only for public relations purposes." (Because the litigation privilege insulates allegations in a complaint from defamation liability, a complaint can be a sort of press release for scurrilous accusations, which can then be repeated in the press or on the Internet.) Opposing counsel called this sarcastic and demeaning, but it was reasonable and served a legitimate purpose. Sometimes you just have to trust yourself to decide that it's not whether you win or lose, but how much you get in sanctions.

Of course, most of the time when opposing counsel isn't so clueless, winning or losing is indeed at issue, and it's a mistake to assume the judge shares your view of the case. It should be a given that a judge needs to be convinced, and yet I often see arguments that assume the judge's sympathy and expect the bench to join in the abuse of the other side. It's hard to come up with a concrete example that doesn't require a lengthy explanation of specific facts, so I'll use an example from politics that needs little scene-setting. An opinion piece in the Los Angeles Jewish Journal of October 15, 2008, shortly before the election and after two of the three presidential debates, opened in a manner similar to a few court filings I've seen lately: "The pretentiously messianic Sen. Barack Obama would be comical, except many people vote apparently not for president but for debate team captain."

This sentence certainly doesn't lack style, and there's no question about how the author (Arnold Steinberg, identified in a tagline as "a political strategist and analyst") wants you to vote. "Pretentiously messianic" gets your attention, and for many Jewish readers it has a resonance it would not have for non-Jews, calling to mind centuries of failed or fraudulent messianic pretenders who often led their followers into catastrophe. The sentence even shows some agility in trying to deflate what the writer obviously saw as Obama victories in the debates.

Yet as an argumentative opening, it's inept. Dismissing a candidate with pejorative descriptions might get approving nods from readers who have already decided to vote for the candidate's opponent, but it does nothing to convince the writer's real target: voters who are undecided or leaning the other way. He must have known that in recent decades the Jewish presidential vote has gone about three-to-one Democratic, so he had to figure on an uphill task with 75 percent of his readers. Anyone he actually wanted to persuade would likely have stopped reading after the first sentence.

This sort of thing is normal in political discourse, where unsupported opinion is king, but if you start a brief with guns blazing like this, the judge will suspect you're shooting blanks. Best to show the ammunition first: Lay out, quickly and accurately, the reasons you should win, then find a way of putting your point across memorably.

All of this raises the related question of whether it's acceptable to be flippant, or indeed, whether it's at all acceptable not to be dull in a profession where writing is traditionally dull. This depends on how well you, er, flippify. Flippicize. Whatever. There's nothing wrong with making a judge chuckle. Quite the contrary: A judge who is amused by some point will likely remember it more than if the same point had been expressed in some way that did not stand out. One giggle is worth a thousand underlinings, boldface types, and exclamation points.

If you're of the school that thinks argument should wear a gray suit all the time, and anything that isn't deadly serious is potentially dangerous, I won't disagree with you. By all means, play it safe?not so much because you're entirely correct in your view, but because you shouldn't try what doesn't feel right. On the other hand, if the wording is accurate and apt, don't worry about whether it seems serious enough. If your ear is good, your tone will be fine. If you're tone-deaf, have someone else go over your stuff to fine-tone it.

Howard Posner practices appellate law in Los Angeles, consults with other lawyers about writing, and writes about nonlegal matters.

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