Point Made

David F. Maron

Article by David F. Maron 2012-2013 CABA President

Email: dmaron@bakerdonelson.com
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The writing of legal briefs, motions and court opinions share at least one common purpose — to effectively communicate an idea — whether an argument (motion) or statement of law (court order or opinion). Occasionally, the writing rises to new levels. The following are some examples.

A Nov. 1, 2013 USA Today article describes a forceful, if not creative, response to a motion in limine. The prosecution had asked the court to prevent the defense attorney from referring to the State’s attorneys as “the Government.” But as the article reports the defense attorney:

fired off his own motion in response. It included conventional references to case law, the First Amendment — technical stuff that one would expect in a court filing.

And then he got creative … [H]e demanded his client no longer be referred to as “the Defendant,” but instead be called “Mister,” “the Citizen Accused” or “that innocent man”— since all defendants are presumed innocent until a judge or jury finds them guilty. As for himself, clearly “lawyer” or “defense attorney” wouldn’t do him, well, justice.

Rather, counsel for the Citizen Accused should be referred to primarily as the ‘Defender of the Innocent’ … Alternatively, counsel would also accept the designation ‘Guardian of the Realm,’” [he continued]

And since prosecutors are often referred to formally as “General” in court, Justice, in an effort to be flexible, offered up a military title of his own.

Whenever addressed by name, the name ‘Captain Justice’ will be appropriate.1

Click here to view the motion and response from the case, State of Tennessee v. Powell.2

According to the article, the court denied the prosecution’s motion in limine holding that the word “the Government” was not derogatory.3 The response was humorous and effectively made a point. No doubt a win for the defense — and perhaps for creative writing; but is there a limit? Let us hear from you.

Well-placed and forceful sarcasm no doubt may bring home a point better than 10 pages of cogent argument. But use good judgment, please. And what may be appropriate in one situation isn’t in another.

The Mississippi Supreme Court made this point years ago when considering whether a pro se litigant’s response was sufficient to overturn an entry of default. In Wheat v. Eakin,4 the court included a complete copy of Wheat’s response. Without question it made a point. A copy is included here. But the court further explained that “[w]hile the form and language the appellant’s response are less than desirable and more frank than customary” it was sufficient as a general denial. But, the court cautioned, “If an attorney had used such language in a pleading to the court, he would have been subject to discipline by both the Court and the State Bar.” 5

Sarcasm isn’t only for lawyers. In Gonzalez-Servin, et al. v. Ford Motor Co.6 noted jurist Richard Posner chastised a lawyer for completely ignoring adverse, dispositive precedent in its response brief. Judge Posner wrote that “when there is apparently dispositive precedent, an appellant may urge its overruling or distinguishing or reserve a challenge to it for a petition for certiorari but may not simply ignore it.” And he punctuated his point with pictures (included here on page 5) accompanied by the observation: “The ostrich is a noble animal, but not a proper model for an appellate advocate … The ostrich-like tactic of pretending that potentially dispositive authority against a litigant’s contention does not exist is as unprofessional as it is pointless.” 7

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  1. See, Brian Haas, Move in response to prosecutors’ motion to references to them as ‘the government, USA Today, Nov. 1, 2013, at http://www.usatoday.com/story/news/nation/2013/11/01/defense-attorney-demands-to-be-called-captain-justice/3341623; see also Brian Haas Just Call him ‘Captain Justice,’ The Tennessean, Nov 1, 2013, A1 available at The Tennessean archives: http://pqasb.pqarchiver.com/tennessean/doc/1447663947.html?FMT=FT&FMTS=ABS:FT&type=current&date=Nov+1%2C+2013&author=Haas%2C+Brian&pub=The+Tennessean&desc=Just+call+him+%27Captain+Justice%27&pf=1
  2. State of Tennessee v. Powell, In the Criminal Court of Williamson County, Tennessee, Case No. I-CR086639B
  3. Id.
  4. Wheat v. Eakin, 491 So. 2d 523, 527 (Miss 1986).
  5. Id. at 526.
  6. Gonzalez-Servin, et al. v. Ford Motor Co., in the United States Court of Appeals for the Seventh Circuit, No. 11–1665 (November 23, 2011).
  7. Id. at * 5 (citations omitted).