Saturday, December 14, 2019
In this season of giving, we have the gifts of two new scathing appellate opinions on poor persuasion and civility to remind us all our courts really want for Christmas (and any holiday) is clear, ethical writing. While we have plenty of past examples of appellate courts taking poor writers to task, in November, we gained two more published opinions building on past decisions and reminding us truly persuasive writing is both straightforward and civil.
The blogosphere has already discussed the November 7, 2019 Seventh Circuit opinion in McCurry v. Kenco Logistics, where the court explained: “Bad writing does not normally warrant sanctions, but we draw the line at gibberish.” 942 F.3d 783, 792 (7th Cir. 2019). For a fun review of McCurry listing the many biting phrases the court used, including the new signal “(all errors in original),” see Kevin Underhill’s November 8, 2019 blog. https://loweringthebar.net/2019/11/seventh-circuit-we-draw-the-line-at-gibberish.html.
The McCurry court cited Stanard v. Nygren, 658 F.3d 792, 801–02 (7th Cir. 2011), a Seventh Circuit decision ordering an attorney to should show cause why he should not be disciplined for poor writing and lack of civility. Counsel in Stanard first gained notoriety representing alleged repeat wife-killer Drew Peterson in civil litigation, and faced criticism for his past litigation tactics. See Howard Posner, “Mind Your Grammar,” Cal. Lawyer (Nov. 2012). In Stanard, the court chastised counsel for “Lack of punctuation,” “Near incomprehensibility,” “Failure to follow basic directions,” “Grammatical and syntactical errors,” and incorrect statements of fact and law. 658 F.3d at 797-800. According to Judge Sykes, who also authored McCurry: “At least 23 sentences [in the Stanard brief] contained 100 or more words. This includes sentences of 385, 345, and 291 words.” Stanard, 658 F.3d at 798. Moreover, counsel’s refusal to follow court orders and lack of respect for the trial court hindered his representation of his landowner client in Stanard. Id. at 800-02.
For years, I have used Stanard in appellate advocacy teaching to support the idea truly persuasive writing is accurate and precise. I also use the case to show how lack of civility to the court and others inhibits persuasion.
Now, we can also point students to McCurry, and we have a new case from California expressly saying lack of civility is unpersuasive. On November 22, 2019, the California Court of Appeal issued its opinion in Briganti v. Chow, ___ Cal. App. 4th __, 2019 WL 6242111, *1 (Nov. 22, 2019), and ordered the opinion published “to draw attention to our concluding note on civility, sexism, and persuasive brief writing.” See Debra Cassens Weiss, “Appeals court sees lawyer's reference to 'attractive' judge in brief as a 'teachable moment' on sexism,” http://www.abajournal.com/news/article/appeals-court-sees-lawyers-reference-to-attractive-judge-in-brief-as-a-teachable-moment-on-sexism (Nov. 27, 2019).
Briganti involved, in part, an anti-SLAPP motion regarding claims based on Facebook posts. 2019 WL 6242111, *2-4. In the trial court, then Superior Court Judge Feuer, now a Court of Appeal Justice, made several rulings for and against defendant Chow, and the Briganti court affirmed those rulings. Id. After discussing the merits, the court added an opinion section titled “A Note on Civility, Sexism, and Persuasive Brief Writing,” explaining: “we would be remiss if we did not also comment on a highly inappropriate assessment of certain personal characteristics of the trial judge, including her appearance, [in] Chow’s reply brief. We do so not to punish or embarrass, but to take advantage of a teachable moment.” Id. at *4.
This “teachable moment” was a chance to remind us all sexism, in any form, is unprofessional, unpersuasive, and uncivil. Chow’s reply brief began with comments Justice Feuer was “an attractive, hard-working, brilliant, young, politically well-connected judge on a fast track for the California Supreme Court or Federal Bench,” noting “[w]ith due respect, every so often, an attractive, hard-working, brilliant, young, politically well-connected judge can err! Let’s review the errors!” Id. at *4. When questioned at oral argument, Chow’s counsel “stated he intended to compliment the trial judge.” Id. Nevertheless, the appellate court concluded the brief “reflect[ed] gender bias and disrespect for the judicial system.” Id. According to the court: “Calling a woman judge — now an Associate Justice of this court — ‘attractive,’ . . . is inappropriate because it is both irrelevant and sexist. This is true whether intended as a compliment or not. Such comments would not likely have been made about a male judge.” The court cited the California Code of Judicial Ethics, which compels judges to require lawyers “to refrain from” bias based on gender. Id. at *5. As the Briganti court explained, “as judicial officers, we can and should take steps to help reduce incivility,” by “calling gendered incivility out for what it is and insisting it not be repeated.” Id.
The court ended its opinion: “We conclude by extending our thanks to the many talented lawyers whose excellent briefs and scrupulous professionalism make our work product better and our task more enjoyable.” Id According to Briganti, good brief-writing “requires hard work, rigorous analysis, and careful attention to detail.” Thus, while courts “welcome creativity and do not require perfection,” Briganti “simply did not find the peculiar style and content of [Chow’s] brief’s opening paragraph appropriate, helpful, or persuasive.” Id.
Counsel for Chow appears unrepentant, telling the Metropolitan News-Enterprise the court “totally missed the boat on this one, attacking the messenger . . . for using one generally descriptive word ‘attractive’” and exclaiming “Shame on the DCA! Shame on the DCA!” regarding what used to be called the District Court of Appeal. MetNews Staff Writer, “Reference in Brief to Female Judge as ‘Attractive’ Is Sexist: Justice Currey Says Note Is Made of Inappropriateness of Conduct for Instructional Purpose,” http://www.metnews.com/articles/2019/attractive112519.htm (Nov. 25, 2019). While the Briganti court noted the case did not warrant sanctions, the California State Bar has sanctioned Chow’s counsel in the past. Id.
Despite the Briganti counsel’s rejection of the opinion, the rest of us can add Briganti to McCurry and Stanard, among others, on our personal lists of cases reminding us all courts really want is clear, honest writing that helps them reach proper decisions. And for those of us teaching and mentoring new legal writers, these November gifts from appellate courts help us remind young attorneys true persuasion is civil and thoughtful. Happy holidays!