Keep Criticism of Opposing Counsel Respectful

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.


1 Comment

  1. Avatar Naomi Fein says:

    I read this post with huge interest. Although a non-lawyer, I’ve become aware of the ethical obligations regarding lawyers’ criticisms of other lawyers, in part through a lawsuit in which I am the plaintiff.

    While investigating, I came upon a rather remarkable 4/15/11 appellate decision in the Ohio App 2 Dist. in which the appellate judges went out of their way to quote the comments of a magistrate judge in the lower court that had presided over one phase of the case (Individual Business Services v. Carmack, 2011 WL 1457133, 2011 Ohio 1824).

    The magistrate is commenting upon the plaintiff, Robert Signom II, who is a lawyer licensed to practice in Ohio:
    “The magistrate was highly critical of Signom’s conduct, and described his testimony at the hearing as ‘contradictory, self-serving, incredible, disrespectful, illogical, and perhaps even unethical.’…The magistrate further concluded that Signom had perpetrated a fraud upon the court…”
    I was startled that the magistrate had written this, startled that the App Div actually quoted the magistrate, but not at all startled by the magistrate’s comments, because I recently sat through a deposition of the same man–Robert Signom, the defendant in my case–and my experience matches precisely the magistrate’s comments about him.
    So I guess lawyers who are judges get to fulminate critically over the qualities of other lawyers.

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