Potpourri

You made your case

Restrain your emotions. And don’t accuse.

Don’t show indignation at the shoddy treatment your client has received or at the feeble and misleading arguments raised by opposing counsel. Describing that treatment and dissecting those arguments calmly and dispassionately will affect the court quite as much. And it won’t introduce into the proceeding the antagonism that judges heartily dislike. Nor will it impair your image as a reliably rational and even-tempered counselor. Ideally, you should evoke rather than display indignation.

Cultivate a tone civility, showing that you are not blinded by passion. Don’t accuse opposing counsel of chicanery or bad faith, even if there is some evidence of it. Your poker-faced public presumption must always be that an adversary has misspoken or has inadvertently erred—- not that the adversary has deliberately tried to mislead the court. It’s imperative. As an astute observer on the trial bench puts it: “An attack on opposing counsel undercuts the persuasive force of any legal argument. The practice is uncalled for, unpleasant, and ineffective.” This advice applies especially against casting in pejorative terms something that opposing counsel was fully entitled to do.

Nor should you accuse the lower court of willful distortion, even if that is obvious. A straightforward recital of the facts will arouse whatever animosity the appellate court is capable of entertaining, without detracting from the appearance of calm and equanimity that you want to project. If the court concludes that the law is against you, it will not award your client the victory just to embarrass a rogue trial judge.

Leave a Comment