Once More with Sarcasm

by Howard Posner

Lawyers are both producers and consumers of legal writing, and in both roles we may not always practice, or even believe, what we preach. A while ago this column discussed tone, sarcasm, and humor in writing for courts, and the impossibility of any firm rule about using these tools ["Everybody Must Get Tone," November 2009]. The editors, with the flair for sensationalism that increasingly marks journalism in these desperate times, referred to it in a front-cover tease as "A Guide to Writing Sarcastic Briefs," which promised far more than I, or a magazine, could ever deliver. Sarcasm is a deeply personal thing, not to be taught casually.

It's also a subject on which readers are often ambivalent, so we can't necessarily believe the opinions they express about it. The potential reader who warns us not to indulge in sarcasm may be the reader who chuckles loudest on reading it, or who most vividly remembers the point it makes.

A trial court staff attorney wrote to "emphatically disagree with the suggestion ... that sarcasm is appropriate in legal argument." She "cringed" at a couple of phrases I'd quoted from a motion to dismiss a particularly egregious complaint (the motion pointed out that the complaint achieved the singular feat of alleging no facts at all in 30-plus pages, as if the drafter "copied a form book without filling in the blanks"). This she called "a sniping personal attack on opposing counsel that would serve only to distract the reader from the substantive issues," advising that the absence of facts could have been pointed out in "a simple declarative statement to that effect."

It doesn't surprise me that she and I disagree about whether the cringe-inducing remarks were "personal" attacks, as opposed to concretely expressed attacks directed to the pleading itself. The definition of personal in this context is pretty vague, and the location of the boundary between a personal attack and an attack on the argument varies with whether the locator is the attacker, attackee, or a neutral reader caught in no-man's land without a map.

We also disagree about whether a simple declarative sentence is always sufficient to convey a point. Every litigator has horror stories about rulings for which the only explanation is that the judge simply did not understand - and most likely did not read - something in the papers. The suspicion that judges skip over paragraphs and pages is largely the reason that documents addressed to them contain lots of repetition, in hopes of getting their points across by sheer operation of probability. This approach creates documents of excessive length, in which the individual points are harder to find, which in turn creates a need for more repetition to make it more likely that important points will be found.

Hence the attraction of writing that stands out from the crowd. Non-ordinary writing may risk offending the judge (or the judge's staff attorney), but ordinary writing carries its own risks, the biggest of which are that the reader will simply not read it, or will read everything and remember nothing because the mind has disengaged from the eye, a particularly likely event if the reader has a dozen motions on the calendar that day.

But if a paragraph is an unusual experience, it will carry its point. An email I got from a retired judge recalled a criminal defense attorney's reply to the Attorney General's opposition to his Pitchess motion (to obtain personnel records of a law enforcement officer). In a first paragraph spaced to take up an entire page, the attorney wrote:

I recently came across the written test for prospective members of the Attorney General's Office. One of the questions requires the applicant to match the words in the column on the left with the appropriate response in the column on the right:

In ..... White
Up ..... Oppose
Hot ..... Down
Black ..... Out
Pitchess ..... Cold

The former judge wrote, "I suppose he could have simply said the AG's Opposition was frivolous, but I certainly wouldn't have remembered that opening 10 years later."

I couldn't help noticing that the former judge hadn't told me how he ruled on the motion. I'm very observant that way. I'm also aware that judges are not keen to admit being swayed by an advocate's style. Nonetheless, in my seldom-ending commitment to The Truth, I wrote back and asked who won the motion.

"It would make a better story if I could say the smart-ass won," he replied, "but I honestly don't remember. The case may have been a snoozer, but the brief was memorable and he certainly had me grinning and leaning his way before the hearing."

I'll reluctantly take the former judge at his word about not remembering who prevailed, but my money's on the smart-ass.

What I find most interesting about this story is that the defense attorney's opening was unequivocally personal - completely ad hominem, attacking the opposition's authors (or their government agency employer) rather than its substance. Of course, the opposition may indeed have had no substance, and the reply, having set the reader up to be alert for that very lack, may have done a stellar job pointing it out. But I wouldn't have had the guts (or gall) to open with an entire page that said, however cleverly, "Don't listen to anyone in the AG's office; they oppose these motions automatically regardless of merit." And I would advise against trying it at home.

Still, I find myself wondering how the same opening would strike the "no sarcasm ever" staff attorney. Maybe it would have prejudiced her against the defense attorney. Or maybe she would have put her indignation on hold and smiled too. I don't know for sure, but I do know she would have remembered it.

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

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