This article originally appeared in The Recorder on December 3, 2021.
In a previous column for this publication, I discussed how incivility in legal writing – by attorneys or judges – often has the effect of undermining one’s argument. This is so because uncivil writing is inconsistent with the three pillars of rhetoric identified by Aristotle: ethos (credibility of the speaker), logos (logical reasoning), and pathos (emotional appeal). That is, writing that is hostile or hyperbolic tarnishes the author’s credibility, diminishes the argument’s logical prowess, and chips away at the audience’s sympathy for the claims presented.
Yet, incivility in appellate briefs continues to rear its head. And it can have consequences other than killing the argument in your client’s case.
For counsel, incivility can cost you – your time, your reputation, your money, and possibly your freedom. The California Court of Appeal, Fourth Appellate District, Division Three recently underlined this point in In re Paul Mahoney, 65 Cal. App. 5th 376 (2021).
After an unsuccessful appeal in that court, counsel filed a petition for rehearing. But rather than “attempt to explain, distinguish, or otherwise reply to the cases and statutes relied upon by the trial court and this one,” counsel instead “filed nine pages of text that more closely resembled a rant than a petition.”
The statements in the petition for rehearing ranged from insinuating that the respondent “may have prevailed because it had contracts with a third party ‘who . . . wields a lot of legal and political clout in Orange County’” to a claim that the “court ‘indiscriminately screw[ed]’” counsel’s client. The petition also challenged the fairness of the judicial system as a whole, questioning whether the appellate court’s decision was akin to a high-profile case of a California attorney accused of egregious unethical conduct. While not entirely clear, the claim was either that as a result of its appellate decision, the court was itself a bad actor, or that it consciously ignored the bad actions of others.
After receiving the petition for rehearing, the Court of Appeal issued an order to show cause providing counsel a chance to explain why he should not be held in contempt given the statements in his brief impugning the court’s integrity.
Rather than showing contrition in response to the order to show cause, counsel instead “‘doubled down’ on his original position.” He claimed that the petition merely “mentioned the obvious things that go on in Orange County,” with reference to a large company that he insinuated holds political sway with the court because of its size and wealth.
The court was not pleased. It also expressed disappointment that counsel did not temper his position at oral argument on the order to show cause. “We tried to nudge him toward a more temperate position but were unsuccessful. Every time he seemed ready to moderate his stance, he would change direction and return to it.”
Issuing a contempt citation and monetary fine, the court also opted to publish its decision as a signal to lawyers who skate past the boundaries of incivility and cast aspersions at the court’s integrity. It said in no uncertain terms: “This kind of over-the-top, anything-goes, devil-take-the-hindmost rhetoric has to stop.”
All of that said, the court tempered its own opinion to clarify the type of arguments that are legitimate.
First, it pointed out that the kind of accusations leveled in this case were unusual, and that appellate courts generally are not “thin-skinned” in handling criticism of their decisions.
Additionally, so as not to stifle proper argument identifying factual, legal, or analytical errors by the court, it was quick to point out that if counsel thinks “the court is wrong, don’t hesitate to say so.” The court even encouraged arguments presented with “zeal” and “passion.” But presenting such arguments requires explaining the court’s error, analyzing the authorities relied upon, and delineating the mistake. Counsel in this case had not done any of those, opting instead to accuse the court of making a decision in order to curry political favor or of acting unethically so as to undermine the judicial system as a whole.
At bottom, the Mahoney case had real costs to counsel. Damage to one’s professional reputation certainly can occur where, like here, the court observed that it was “confronted with a member of the bar who, after 52 years of practice, believes this is legitimate argument. We do not.”
This case also cost counsel time to respond in writing and appear at a hearing on the order to show cause. Finally, the court noted that under California Code of Civil Procedure section 1218, a civil contempt citation could have been punishable by a maximum of five days in jail. However, the court opted instead to impose a $2,000 monetary fine.
The court’s call to action was clear. “We are professionals. Like the clergy, like doctors, like scientists, we are members of a profession, and we have to conduct ourselves accordingly.” Acknowledging that the “vast majority of lawyers know that professional speech must always be temperate and respectful and can never undermine confidence in the institution,” the court published its order to “instruct the few who don’t.”
As the court noted: “Respect for individual judges and specific decisions is a matter of personal opinion. Respect for the institution is not; it is a sine qua non.”
Even if incivility has become an all-too-familiar part of popular discourse, this case offers lessons to lawyers and calls on us to elevate the dialogue in our briefs and arguments. The costs of not doing so have become apparent.
On Appeals is a monthly column by the attorneys of the California Appellate Law Group LLP*, an appellate boutique with offices in Los Angeles, San Francisco, and San Diego. Johanna Schiavoni (email@example.com) is a certified specialist in appellate law, and her practice at California Appellate Law Group LLP focuses on civil appeals in state and federal courts. She served as a law clerk to Ninth Circuit Judge M. Margaret McKeown and Central District of California Judge Christina A. Snyder. She was the 2020 President of the San Diego County Bar Association and serves on the board of the National Conference of Bar Presidents. Find out more about Johanna and the California Appellate Law Group LLP at www.calapplaw.com.
*In July 2022, the California Appellate Law Group was renamed the Complex Appellate Litigation Group.
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