by John Mills
While discussion of professionalism traditionally focuses on discovery disputes, depositions, motion practice, and trials, professionalism in the appellate courts receives little attention. Professionalism should be less of an issue on appeal because the appellate process is sufficiently removed from the battle in the trial trenches where face-to-face confrontation among parties and witnesses present often difficult challenges to maintaining composure and dignity. Nonetheless, lawyers are not always able to, nor interested in, staying above the fray in an appeal.
Failure to cite adverse authority and misstating the record are ethical violations that are the most damaging to the appellate process, but ethical violations are not the only problem. Instead of addressing and refuting the other side’s legal arguments, many lawyers have fallen into the trap of ad hominem attacks on opposing counsel. For example, I recently read a reply brief that began with the following statement: “In a simpler, more candid era the technique employed by [the appellees] could have been characterized as ‘The Big Lie,’ but in today’s complex and nuanced age we denominate it merely ‘over zealous.’” Disagreements over the meaning of case law or inferences from the evidence turn into finger pointing and name calling. The focus changes from the argument of opposing counsel to the purity of his motives and intent.
I submit that this approach not only compromises the dignity of the legal process, but is also a disservice to the client. Even if the appellate court does not issue sanctions, condemn the conduct in a written opinion, or attempt to counsel the unprofessional lawyer at oral argument, contumacious conduct does not persuade appellate judges. To the contrary, it may signal to the court that the lawyer’s legal position is so weak that she must resort to other tactics or that the finger-pointer lacks the intellectual capacity to make an argument based on logic and the record and instead can rely only on schoolyard bravado. Unprofessional conduct can also damage the lawyer’s credibility not only in the present appeal, but in future proceedings. Just as lawyers exchange war stories, judges talk.
Having practiced appellate litigation for the past five years and having served as a judicial clerk to an appellate judge, I am quite confident in saying that personal attacks by appellate counsel are counterproductive to success on appeal. When one side misrepresents the record, a subtle but clear explanation of what the record really says (with citation) is far more effective and devastating than a personal attack on the character and motives of the offending party. Beginning an argument with “Mr. So-and-So is trying to mislead this Court by contending that –” is not only less professional, but also less persuasive than “Appellant’s argument fails to account for . . .”
Indignation cannot be forced upon an appellate judge, and it is far more effective to present the case in a way that allows the judge to come to her own conclusion. Similarly, ignoring a personal attack by opposing counsel and objectively addressing and refuting the underlying argument is far more likely to persuade an appellate judge to lean your way, than stooping down and firing back.
Successful appellate lawyers have learned to remain above the fray.