Sometimes a key argument in an opposing brief or a reviewable judicial opinion is largely unintelligible. One way of attacking such an argument is simply to assert its unintelligibility, but what if the court disagrees? A related disadvantage of simple assertion is that even if the entire argument is unintelligible, the parts may not be. When only the parts are intelligible, attorneys are likely to respond to the parts and ignore the unintelligible whole, an approach that doesn't remove the risk that the judge thinks the whole does have some meaning you missed.
When unintelligibility is found, usually the poor reasoning in the attempt at argument causes it. The lawyer responding to such an argument should not pass up the opportunity to demolish the poorly reasoned argument, a more effective response than declaring it unintelligible. Demolishing the argument discredits it and helps prevent its resurrection by improvement, and the judge will be more satisfied to have a sense of understanding the intended argument than merely dismissing it. When the judge's interpretation is overly charitable, you can supplant the judge's interpretation of the argument with a well-reasoned exegesis of an opponent's or lower court's argument .
The following argument comes from a judge's order in a State Bar discipline case where the prosecution is trying to disbar Philip E. Kay for disobedience to court orders. California State Bar cases are an excellent source of examples of terrible writing and even worse logic. The paragraphs I'll quote served to oppose Kay's claim that the State Bar withheld exculpatory evidence relevant to the statute of limitations. The evidence was from testimony in a federal suit on employment issues by a former state bar prosecutor (Konig). Here are the paragraphs:
In general, a prosecutor's opinions and impression of the case are not discoverable under the duty to disclose exculpatory evidence respondents assert that the Konig federal lawsuit contains conclusions of individual prosecutors that is at odds with the State Bar's position in this case, specifically referencing statements that judge Anello was a complaining witness in this case. However, the issue of whether Judge Anello was a complaining witness was not relevant in either the Konig federal or state cases. Moreover, witnesses must testify to facts and not their opinions or conclusions. Likewise, the use of slang is not evidence. Further, it is the opinion of the Office of the Chief Trial Counsel and not individual prosecutors that matters.
Even experts usually may not testify as to questions of law. That is, the opinion of a witness on a question of law is generally incompetent and inadmissable. Likewise, individual prosecutors cannot testify as to their individual opinions and conclusions regarding the law in a matter they were involved in; and respondents have no right to the prosecutors' individual opinions and conclusions. Nor are they relevant.
The bar-court's paragraphs are a mess, as revealed in the transitions, which strive to give the impression of logic while flouting it. Separate arguments are tied together with "however" and "moreover" without demonstrating the corresponding logical relationship between them. Since the paragraphs seem to express no unified argument, the confused argument tempts attorneys to ignore the argument as a whole and respond to each of the separate claims, such as the one claiming Judge Anello's status as a complaining witness wasn't relevant in the cases Kay wants to access. Kay could respond that Judge Anello's status as a complaining witness was relevant in the federal case because the district court stated in its conclusion that Anello was the complaining witness. I don't quarrel with that argument, but it isn't the central point to be made in response. To construct the most effective opposition, one should first figure out what the State Bar is really saying.
Helping the State Bar substitute a coherent meaning for the quoted confusion isn't doing the State Bar a favor. The State Bar applies rules prohibiting use of opinions of individual prosecutors to support conclusions about which opinion is correct, meaning if the State Bar officially characterized Judge Anello as not being a complaining witness, you cannot counterpose the opinion of specific prosecutors as authoritative or as true. The rules the State Bar tries to invoke are analogous to the hearsay rule, which states that second hand statements cannot serve as evidence for their truth. Similarly, the opinions of prosecutors cannot be invoked to prove their truth, but Kay didn't unseal the Konig records to prove that Judge Anello was a complaining witness because prosecutors said he was but to prove facts, such as his role in charging Kay, that implied he was. The same facts are circumstantial evidence that, contrary to what the State Bar claims, it regarded him as a complaining witness. The key to undermining the State Bar Court's argument as a whole is exhibiting its central mistake and analogizing it to a misapplication of the hearsay rule.
Similar to what you mention about "what if the court disagrees," I would offer an additional piece of advice: don't be a jerk!
ReplyDeleteWhen faced with one of these arguments, I prefer to use phrases like "appears to argue" and, absent extreme circumstances, I always avoid referring to counsel directly.
If your writing is taken as a personal attack against opposing counsel, whether criticizing their writing or otherwise, the effect will be for the judge or judges to more closely examine you're own writing and find some way to show you that you are not the smartest person in the room.