Lawyers confront bad lawyering every day, which is frustrating, but one can effectively engage in criticism of another lawyer’s work without getting nasty. Your reputation and your client’s well-being are directly affected by whether you can walk this line.
Frustration Should Not Drive Criticism
The ABA Journal is replete with stories of judges and lawyers “going off” on bad lawyering. Unless you are a legendary federal appellate judge, you should refrain from doing so. But that doesn’t mean you just put up with it, either. Criticism delivered in a professional tone is more effective than a rant, and less likely to drag you down to your opponent’s level. Also, belligerence or theatrics in criticizing another attorney’s work can draw the ire of the court (start at ¶14).
One example of a lawyer forgetting the distinction between criticizing and attacking is this recent case. The angry attorney (Crite) asserts in his motion that (opposing counsel) Bluebaum’s pleadings use apostrophes so confusingly that the case can’t even proceed. I have no problem with Crite’s direct criticism of Bluebaum’s petition when he ties those criticisms to the case itself, by asserting that the accusations can’t be answered because they are unclear.
But Crite now finds himself in the ABA Journal (and not in the context he would probably wish) because he just couldn’t restrain himself. Is using the following language really a good idea in a motion?
…petition is the worst example of pleading that the defendant’s attorney has ever witnessed…
Without…dividing this long-winded allegation into separate paragraphs, there is no way on God’s earth that the defendant can reasonably be expected to answer this diatribe…
Save the Rant for a Friend
We can all improve the quality of our communication—mine is far from perfect. And it’s easy to get aggravated by legal writing that is so poor that it’s incomprehensible. But save your rants about it for after work or at least over lunch. Then go back to your desk and write in a fashion that advances your client’s case effectively without resorting to what may be viewed by the court as ad hominem attacks on a fellow attorney.