But on the second, or third, or fourth, edit, you invariably take those things out. Passions fade. Reason prevails. You (hopefully) understate rather than overstate. That's the nature of a good brief, particularly in the Court of Appeal.
Jeremiah Reynolds, the head of litigation at Eisner in Beverly Hills, signs a set of appellate briefs that does not receive a warm reception in the 2/4. Here's a snippet from Justice Zukin's opinion today:
"The first line of the opening brief reads: “This is an appeal about double
standards.” The brief explains that judgment was entered against the
Bespalovs “due to the Respondent Court’s manifold and prejudicial legal
errors and unchecked bias.” “This judgment,” it says, “could not have been
reached without . . . the Respondent Court’s two thumbs firmly on the scale
for [respondents].” The brief claims that “the outcome of this case was
predetermined by the double standard employed by the Respondent Court.”
It further contends that “the Respondent Court abdicated [its] responsibility”
when it credited the testimony of an opposing witness. It asserts “that the Respondent Court was as biased against the Bespalovs as it was in favor of
[respondent].” (Italics in original.) “The Court,” it complains, “bent over
backwards to assist [respondent] in glossing over the gaping and dispositive
flaws with its case . . . and it relentlessly shut down the Bespalovs’ ability to
present effective defenses. The resulting $5.9 million Judgment was a
travesty.” This vitriol made the introduction memorable, in all the wrong
ways.
The body of the brief continues to press the allegations of bias but offers
no evidence to substantiate them. It deploys headings that refer to “Biased
Trial Rulings” and say the trial court gave respondent “Carte Blanche to
Introduce Whatever Evidence It Wanted.” Yet nothing in the arguments
beneath those headings explains how the court’s rulings were biased, beyond
the mere fact that counsel disagreed with them. In other sections, the brief
accuses the court of showing “unending deference” to the respondent,
abdicating its judicial responsibilities, and making “a mockery of due
process.” It concludes by again charging the court with employing an
“unabashed double standard.”
The reply brief maintains the drumbeat of insults. It says the trial
court failed to accept “obvious propositions” and “helped [respondent] gloss
over its fatal standing problem.” It calls the court’s final ruling “a runaway
Statement of Final Decision.” Finally, it treats the court’s alleged bias as
assumed, remarking snidely in response to an opposing argument: “it is
manifestly unavailing to argue that . . . any error was harmless because the
court was already biased against Mr. Bespalov anyway.”"
The Court of Appeal issues an order to show cause regarding sanctions. Although Mr. Reynolds then apologizes for the invectives, he goes on, in both briefs and at oral argument, to somewhat defend what he wrote.
That's not the play. It doesn't work, and results in (1) a published opinion that mentions Mr. Reynolds by name, and (2) $1000 in sanctions.
Just fall on your sword. Apologize, full stop. Say -- accurately -- that you got caught up on the moment, and that you won't do it again.
You might still get sanctioned. But at least you won't get an opinion like this one. (Probably.)
