by RICH CASSIDY on OCTOBER 3, 2010
Of late, for some reason, the words “without merit,” and its siblings, “meritless,” “frivolous,” and the like in lawyers’ briefs and memoranda have started grating on me like the squeal of fingernails scraping across a chalkboard. I say that even though I know that from time to time I have used such language myself.
Now, I am not a believer in hard and fast rules for litigation. Life is complicated and so are lawsuits, and in my experience, the best lawyers have broad repertoires. They match their strategies and tactics to the particular circumstances of the individual case. And they choose language to follow their tactics. So my “rule” is hardly ever to say never. It pays to think broadly about how to handle a particular case and to match one’s choices to the setting.
But lately it seems like every other brief or legal memoranda I read not only asserts that it has the best of the legal argument; it claims that the other side’s argument is downright silly.
Sometimes the label is just plain fact. And when it clearly is, I don’t see any reason why an opposing lawyer should not call it out.
But most of the time, that’s just not the case. Facts are slippery, and the law is slipperier still. After all, the law is made up of words, and as Oliver Wendell Holmes, Jr. wrote, “A word is not a crystal, transparent and unchanging; it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.” Towne v Eisner, 245 U.S. 418, 425 (1918).
Most of the time, the arguments of both — or all sides — in a case do have some merit. Perhaps the case isn’t really close, but usually both sides have something serious to say. And when one lawyer argues not just this his client is right, but that the other lawyers’ arguments are frivolous, just what does he or she really achieve? Most of the time: nothing, not for good or ill. It is usually part of the boilerplate of the lawyers’ brief, and the eyes of overworked judges will often skip over such a pro forma argument without taking in a thing.
But not all judges are overworked, and even some who are, are contentious souls who read and think about every word.
So the next time you are tempted to toss around such words and phrases, stop and think about what such a judge will feel when she reads your hyperbole. Using such language is unlikely to persuade anyone of anything. And if it doesn’t, who does it reflect on? It reflects on the lawyer who wrote it. It takes a small nick out of that lawyer’s credibility. Probably such a nick is too small to affect the result.
But then again, why risk it?
Rich