Tuesday, May 20, 2008

Counsel wins for his client, then takes a personal hit.

From an opinion issued today by the Wisconsin Court of Appeals:

Although we resolve this issue in the County's favor, we take issue with its brief. We understand corporation counsel's obvious frustration over repeated litigation with Bettendorf, particularly in light of the fact situation in this case. But corporation counsel's brief contains a collection of attacks against Bettendorf's attorney that are nothing more than unfounded, mean-spirited slurs. Given corporation counsel's grievances against Bettendorf's attorney, such hyperbole is, at the very least, ironic.

Contending that appellant's recitation of the facts is misleading is not an uncommon accusation from respondents. However, corporation counsel goes beyond noting this perceived misrepresentation and complains that opposing counsel's "desire to serve his self-interest is excessive. With apparent hubris, he mocks and insults this court and the appellate system with this approach and this appeal." Corporation counsel then comments: "Creating facts creates a false reality. Bettendorf['s attorney] needs a false reality to maintain this appeal."

To refute counsel's contention that this court exceeded its authority on review, corporation counsel notes that Bettendorf's attorney "goes beyond what I could conceive anyone doing. He doesn't push the envelope, he totally shreds it." Corporation counsel also asserts counsel's "rant is factually baseless. . . . The rest of his argument in this regard is the same ranting."

Corporation counsel then cites Alice in Wonderland by Lewis Carroll, to less-than-persuasive effect, and summarizes this appeal as having a "farcical theme."

"A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials."

(Emphasis added.) Preamble, SCR ch. 20 (2005-06). "The advocate's function is to present evidence and argument so that the cause may be decided according to law. . . . An advocate can present the cause, protect the record for subsequent review and preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics." Comment, SCR 20:3.5 (2005-06). Given corporation counsel's unwarranted belligerence, it is the determination of this panel that a copy of this opinion shall be furnished to the Office of Lawyer Regulation for review and further investigation, as that office may deem appropriate.

Bettendorf v. St. Croix County, No. 2007AP2329, slip op. ¶¶ 14-17 (Wis. Ct.App. May 20, 2008) (footnotes omitted) (recommended for publication). The court also commends opposing counsel for his restraint: "We thus appreciate Bettendorf's attorney's professionalism and restraint, demonstrated by his refusal to turn his reply brief into a similar set of attacks." Id. ¶ 17 n.3.


hat tip:  Chris Wren



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If the advice in yesterday's post (http://lawprofessors.typepad.com/legalwriting/2008/05/negative-vs-pos.html) is correct, then no one should use this example to teach a point. Not to lawyers at any rate . . .

Posted by: Coleen Barger | May 20, 2008 12:47:07 PM

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