From the Multnomah Lawyer: Tips from the Bench: “That No-Good Rotten Liar!”
It feels a bit surreal writing this article now; so many greater and new issues having arisen during the pandemic. Life and the law continue though, even if at a slower pace. Today’s topic was selected from a list of questions MBA members submitted in February: How should one handle misrepresentations by opposing counsel in briefs and/or oral argument? The short answer is “forcefully, but respectfully.”
Presiding Judge Stephen Bushong is currently working on a procedure for civil motions which will potentially allow a judge to decide a motion based solely on the written submissions if both sides agree. Once implemented, this will allow decisions on at least some motions that are becoming backlogged during our current Level 3 restrictions that limit court operations to essential hearings. The current restrictions last until June 1, but it is possible they will be extended. I mention this because I believe there is some difference in addressing perceived misrepresentations in writing versus oral argument. This article attempts to deal with both.
You may believe opposing counsel has misrepresented either the law or facts. While this can be frustrating, understand that judges will usually wonder if such “misrepresentation” is actually that. Two sides often interpret a case or facts differently. Differing interpretations doesn’t (necessarily) mean the other side is “wrong.” A judge may default to assuming that there is a difference in interpretation rather than concluding one side is deliberately false. It is important to check your first impression of what opposing counsel is up to and respond respectfully, even when you don’t respect them.
Reread the case trying to imagine the other side’s perspective. If it still seems inherently incorrect, you should forcefully inform the court but use verbiage that avoids insulting the other side. I can tell you that I tend to give more credence to a side that remains respectful because they appear to be arguing from a place of logic. We judges are supposed to make decisions based on our belief of the law, whether we emotionally agree with it or not. I have read briefs that are extremely strident in their tone and frankly, I question the writer who is overly insulting. It can come across as more defensive than informative. A written response allows an attorney a “calming period” after reading opposing counsel’s brief, so it is hard to understand why some lawyers write in angry language. An overly emotional written brief highlights a lack of maturity.
Many judges will not know either counsel or be familiar with the reputation of a particular attorney practicing in your area of law. While all your colleagues may agree that “Lawyer X can’t be trusted and has been dishonest for years,” a judge may not share this sentiment. It is best to avoid terse replies such as “counsel is wrong” or “counsel misrepresents the case holding” and better to simply write: “counsel cites (such-and-such case), but this case does not support their position.” Then provide an analysis of what the case actually stands for and why you believe it to be so.
In some ways, correcting a perceived “misrepresentation” during oral argument is easier. This is because tone of voice can convey information along with word choice. If you believe there is a misrepresentation of law, you can use tone of voice to convey the import of the judge reviewing a particular case. Saying “Your Honor, this case stands for a different proposition than that suggested by opposing counsel,” in the right tone of voice, is as effective as saying “Your Honor, counsel is simply wrong!” The former seems less defensive.
Of course, there may be times when you get the sense the judge hasn’t read the particular case or can’t recall its details. In such a situation, you can repeat the importance of the case and emphasize you’d be happy to wait for a ruling pending the judge rereading the case(s). This should be done delicately as you don’t want to imply the judge hasn’t read it. You can say something along the lines of: “Your Honor, I understand you are busy and that we have cited a number of cases to review. I don’t expect you have memorized every case. I have no issue awaiting a ruling if you would like to review the case(s).” This is respectfully, but forcefully, highlighting the importance of a particular legal position. The judge may or may not take your suggestion, but they shouldn’t become upset with someone acting rationally.
The danger of oral argument is being angered anew by something opposing counsel says that is unexpected. In responding, avoid insulting language or behaving histrionically. Take some (subtle) deep breaths before responding if necessary. If you are not sure how you present, I suggest practicing an oral argument while filming yourself and seeking input from those you trust. Allow your roommate, friend or significant other to interrupt you and try to throw you off your game. The ultimate goal is to persuade, and the art is different in written and oral form. Oral argument can supplement written, but it can also detract if the attorney makes a poor presentation.
Finally, it can be very difficult to correct what you believe is a misstatement of fact. Unless you can introduce an exhibit/attachment/affidavit that definitively proves the other side is wrong, it is best to recognize both sides view a “fact” as meaning something different and explain why your view is correct. If you do catch opposing counsel in an obvious misstatement, recognize they (like you), have a large caseload and may simply have misremembered. Correct them. Firmly, but respectfully.
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