Before we were even lawyers, law school trained us to find the most creative arguments possible, and to never leave one out. That’s how we passed our Torts exam—we identified 18 causes of action in a simple slip-and-fall hypothetical. But now we’re in the real world of law practice.
The Stakes Are High
If your life is on the line, it might make sense to throw out any argument you have. After all, it worked for Jake Elwood in Blues Brothers:
Stick With The Winners
But in legal writing and advocacy, including bad arguments with good ones is a dangerous game. You might just prevent the judge from seeing the case your way. Justice Kagan says as much in her interview with Bryan Garner:
G: If there were one thing about brief-writing you could reform, what would it be?
K: Well, I think everybody would say the same thing: that the most important thing in a brief is clarity. If there’s one thing about brief-writing you could reform, it’s confusing briefs—briefs where you’re working too hard to try to figure out what the point is and to figure out how the argument goes. There are two really important things about brief-writing. One is you have to know your best arguments. Second, you have to say those arguments clearly. Sometimes it’s frustrating, because you’ll be reading a brief and there will be good arguments there, but it’s just so hard to get them out of this brief. You have to do so much work by yourself or with clerks to do that. It’s a disservice to the real arguments that are there.
You can find the full transcript of Bryan Garner’s interview of Justice Kagan here.
Some Judges Don’t Like Watching A “Back-Alley Knife Fight”
Combine the employees’ evidence-free sexual harassment and retaliation allegations with the employer’s “grapeshot and canister defense,” and you have “one of the sorriest examples of the way that [employment] litigation should be handled.” (pp. 832–833.) The entire order can be found here.
The magistrate judgment lamented (pg. 861 fn. 2) that plaintiffs’ counsel drowned their good arguments in a sea of bad ones:
There were valid and worthwhile issues in this case. It was certainly not baseless on all counts.
For instance, here is the sum total of the evidence plaintiffs offered in support of their retaliation claim (pg. 851):
A. I just mean that, whether I meant to, I felt, I said, I had gone to the top and I felt like nothing was ever going to change at Wabash. I felt like I was going to put up with this as long as I stayed there.
Q. OK, and that’s what you mean by retaliation?
But instead of simply filing a summary-judgment motion, the employer asked the court for Rule 11 sanctions against plaintiffs for their baseless sexual harassment and retaliation claims. The magistrate judge denied the motion, and noted that both claims “were more like pesky gnats and could have just as easily been shooed away.” (pg. 852.) The district court judge agreed.
Among other things, the court was unimpressed by these arguments in favor of sanctioning plaintiffs:
- Case law precluded some of plaintiffs’ arguments in opposition to summary judgment (pg. 854);
- Plaintiffs’ counsel misquoted a Supreme Court case (pg. 854);
- Plaintiffs submitted affidavits that contradicted their deposition testimony (pg. 855); and
- Plaintiffs’ counsel apparently added “personal knowledge” language into the introductory paragraph of a second affidavit, but used the same signature and notary page from the first affidavit (pg. 856).
The magistrate judge came up with his own sanction—one that applied to all the lawyers (pg. 860):
Accordingly, it will be the recommendation of the undersigned Magistrate Judge that a nominal and equal sanction be imposed against Attorneys […] with the sanctions to be paid to the Office of the Clerk within 60 days, provided however, that counsel can petition the Court to set aside the monetary sanction by agreeing to attend and successfully complete within the next year, a Continuing Legal Education (“CLE”) seminar approved by the Court as hereinafter specified.
Now that’s justice.
The Moral Of The Story
Don’t try to destroy your opponent’s case with a bomb when “one or two well-armed rifle shots would have done nicely.” (pg. 858.) The bomb might kill your case instead.