Attacks on Opposing Counsel Can Undermine Your Credibility

I once picked up an opposing brief in an appeal I handled. My opponent made some good points, substantively. But the Justices might have trouble getting past his nasty tone.

He called our arguments "facile", called one of our factual assertions "pure fantasy", accused us of "embellishing the record", called our inclusion of a particular case "simply inexcusable", and said that our brief is "unwittingly, its own worst enemy." And, to top it off, he said that one of our contentions was wrong "except in Respondents' fevered minds."

Maybe he was right (though I don't think so), but judges do not like this sort of thing. They consider it unprofessional.

If you think your opponent's arguments warrant such adjectives, don't say it - show it. Simply state your opponent's point, then show it is wrong with the record, with cases, and with policy. Judges are more likely to believe this than your characterization of his assertions. Nasty commentary has zero persuasive value. It doesn't help - it hurts.

And here's a bonus. If you omit the adjectives, the judges will notice it. Your brief will stand out from the pack, because most lawyers can't restrain themselves from attacking their opponents. They think they're helping their clients - or maybe impressing those clients who like bulldog attorneys. But ask yourself what kind of lawyer you want to be: a fighting loser, or a professional winner?

by M.A.T. Legal Director Myron Moskovitz