Nearly a decade ago, in an opinion by Judge Kethledge, the Sixth Circuit set forth “good reasons not to call an opponent’s argument ‘ridiculous.’” Bennett v. State Farm Mut. Auto. Ins. Co., 731 F.3d 584 (6th Cir. 2013). These included “civility; the near-certainty that overstatement will only push the reader away …; and that, even where the record supports an extreme modifier, ‘the better practice is usually to lay out the facts and let the court reach its own conclusion.’” Id. at 585.
The advice merits repetition and elaboration. Too often appellate advocates succumb to the temptation (or just habit) of using extreme language, impugning the motives of their opponents, or mocking. In my view, not only does this style disserve the legal system, but it is also ineffective advocacy—for the reasons above and more.
Calling an opponent’s argument “ridiculous” (or “ludicrous” or “absurd,” both of which I’ve seen many times) is one variation on a rhetorical theme. Another is impugning the motives of one’s opponent. Common examples of that are labeling an opponent’s argument “disingenuous” and ascribing a malign intentionality to what one side views as the other’s avoidance or misunderstanding of an argument. See, e.g., Big Dipper Entertainment, LLC v. City of Warren, 641 F.3d 715, 719 (6th Cir. 2011). Perhaps less egregious—but, I think, on the rise—are snide, informal characterizations of the other side or its arguments: the snarky brief.
There are plenty of incentives for this style. Among them is the desire of a client to see its advocate striking hard blows, or of the advocate to demonstrate to a client that he or she is striking hard blows. Harsh or mocking language is an easy way to do that, especially because one can see it even if one isn’t deep in the weeds of the argument. In fairness, appellate briefs come late in the life of any dispute, and litigants may well be legitimately frustrated by one another by that time. Increasingly, moreover, there is an aspect of our culture that seems to prize “fighting” for its own sake. Federal judicial opinions themselves are far less free of snark than they were ten years ago.
The Bennett opinion gave two practical reasons for avoiding this: readers will be pushed away and it’s better to let the court reach its own conclusion. Both of these points concern the judicial reader of the brief. One could find the style unprofessional. It might distract from the argument being made. Or what sounds “aggressive” or “snappy” to a writer and his or her client might sound desperate or flip to a neutral reader who comes to a long-running dispute for the first time.
I would add a third practical reason: extreme, mocking, or disparaging language tends to work as an analytical crutch. This one has to do with the writer, not the reader. Actually explaining why an opposing argument is wrong—step by step, so that your conclusion is inescapable—can be very challenging. In my experience, a brief writer who resorts to name calling usually does so as a substitute for the hard work of demonstration. So too with impugning motives. Asserting that a contrary argument is disingenuous may well be easier than grappling with how such an argument might work. And understanding how the best form of an argument could work is a prerequisite for generating an effective rebuttal. (I suspect this is why the most insulting briefs are often wrong on the law. See, e.g., Bearden v. Ballard Health, 967 F.3d 513 (6th Cir. 2020).) In short, the discipline to refrain from disparaging an opponent or its arguments will produce a brief that is stronger on the merits.
Sometimes lawyers will protest that judges do the very things I’m arguing against. That seems increasingly true, unfortunately. But it’s also irrelevant to good brief writing because judges are writing to decide, not to persuade. They don’t necessarily have to worry about turning a reader off or reducing the strength of their reasoning. (They should worry about these things anyway, if they want to do a good job!)
The other reason to avoid disparaging an opponent or its arguments is civility, and that applies equally to advocates and to judges. Not only does civility help preserve the professionalism of legal practice, but it supports the design of the American legal system itself. The ideal of our system is that cases are decided on the facts and the law, not on the identity of the party or the advocate. To the extent that litigation is about things other than the facts and the law, that undermines the integrity of the system, at least in some small way.
Practically and professionally, therefore, rhetorical restraint is the best approach to writing briefs in federal appellate court.