smalltownlawyer

“A countryman between two lawyers is like a fish between two cats. ” Benjamin Franklin.

Atticus Finch nonwithstanding, quite often civil legal practice is anything but ‘civil.’

The exchange between lawyers in pleadings can get very contentious.  It’s not right, and not recommended.  However, despite most lawyer jokes, we are human and we get mad at our opponents.

However, nothing makes a lawyer lose their typically well-balanced cool temperment faster than a snarky, self-important, pro se opponent . . . .

Hey, isn’t that the whole point?  Isn’t making the other side sweat a good thing?

No.  You make the other side uncomfortable with your insightful legal and factual arguments, not with your vitriol and rants.  The most common is to call the other lawyer a ‘bully’ and accuse them of unethical conduct when they argue their case and point out the (usually) considerable flaws in your documents.

Torqueing a lawyer with personal attacks is usually just a guarantee that the attorney will drop everything and double their efforts to discredit and beat you.  We spend three years in school learning this stuff.  We know what we are doing.

So, how should a pro se litigant approach their pleadings?  The key words are simplicity, sincerity, and tone.  A simply written and sincere sounding document with a reasonable and professional tone will take you a long way. 

This is a fantastic article on what I mean by ‘tone.’  The author differentiates ’street talk’ from ‘law talk.’    She sums it up in a great phrase:

“So, you have to decide what your goal is: (1) To post your complaint on the web in all its vitriolic splendor and go down in a blaze of glory or (2) to win your case.”

So, before we even start talking about the techniques and skills needed to properly write the documents, you need to think about your tone and how you want the court and your opponent to perceive you. 

A great case cite that sums up the court’s opinions on personal attacks in pleadings.

“Frankly, resorting to the use of such statements [odiums, sarcasm and vituperative remarks] is an indication of a lack of confidence in the law and the facts to support the position of the one using them.”  State ex rel. Dyer v. Union Elec. Co., 312 S.W.2d 151, 154 (Mo. Ct. App. 1958).  Read the whole article.

This doesn’t mean you have to gloss over or shy away from the other side’s wrong-doings.  If their arguments are conclusory and self-serving, then say that.  Also point out the places where this happens and why your position is correct.  Don’t call the other side or their attorney ’self-aggrandizing,’ or my new word of the week ‘puerile.’

If they lied, say they lied and then include a cite and an exhibit showing how they didn’t tell the truth.  Don’t just call them a ‘liar’ and leave it unsupported.  Do that, and I guarantee, the lawyer on the other side will make you their personal project.

Attorneys are not immune to this temptation.  In a very contentious case, I went through the opponent’s pleadings and pointed out every factual inconsistency, every omitted fact, and every bit of self-serving ’spin’ on the facts.

My opponent waved his metaphorical hand and encouraged the court to ignore all of my ’sophomoric rigamarole.’  He didn’t explain or correct anything.  Just tried to attack me.  Sounds like a perfect example of using venom to “[indicate] a lack of confidence in the law and the facts to support the position of the one using them.”

By the way, I won that argument.  There are three ‘R’s’ in the legal world - ‘research, writing, and rhetoric.’  Only when you do the first two correctly does the third work in your favor.

Back to the quote at the beginning of this post.  Now is when you decide if you are one of the cats or the special guest ‘fish.’

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