How Stupid is that Other Party?; Should I Push that Client?; Extra Punishment for Public Officials; Ogden Update

Legal writing experts tell lawyers to be careful with tone and expressions of disdain or dismissive attitudes towards opponents in motions and briefs.  And lawyers understand (usually) that what might work in traffic court should not be tried in Federal Circuit Courts of Appeals.  And lawyers who represent big clients, like State Farm Auto ought to expect extra scrutiny from courts and judges (mostly due to the respect courts often are suspected of giving to the biglaw lawyer types who represent the big companies.

Imagine what the discussion with General Counsel for State Farm was for the lawyers in Bennett v. State Farm earlier this week.  The Sixth Circuit Court of Appeals (one level below the US Supreme Court in the judicial hierarchy) mocked the insurance company’s lawyers for their brief opposing the efforts of the Bennetts to get what they had coming from Mrs. Bennett being struck while walking her dog.

The opening sentence of the opinion states:

There are good reasons not to call an opponent’s

argument “ridiculous,” which is what State Farm calls Barbara Bennett’s principal argument here. The reasons include civility; the near-certainty that overstatement will only push the reader away (especially when, as here, the hyperbole begins on page one of the brief); and that, even where the record supports an extreme modifier, “the better practice is usually to lay out the facts and let the court reach its own conclusions.”[citations omitted]  But here the biggest reason is more simple: the argument that State Farm derides as ridiculous is instead correct. (emphasis is added).

Oops.  That qualifies as a slapdown.  Now we don’t know which lawyer of the team of Richard M. Garner or Gregory H. Collins, both Ohio lawyers, gets credit for the brief, but the other probably had an opportunity to say “maybe we ought to read our client’s insurance policy before we ask the court to ignore the definition plaintiff is asking for.”

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Clients in dissolution cases can be difficult. they are going through a stressful time in their lives. They often have to deal with their lawyer, the spouse, the spouse’s lawyer, and maybe the kids.  you expect them to lose their cool on occasion.

Lawyers are to be the professionals, even when our client is not dealing well with matters.as well as we want.  Kokomo lawyer Dan May, a long time practitioner, forgot for a moment.

The details are sketchy, but include him shoving the client over the courtroom railing, a battery charge, a diversion agreement, and now a 60 days suspension with automatic reinstatement.

As Sgt. Esterhaus used to say:

http://www.youtube.com/watch?v=Jmg86CRBBtw

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We appreciate our public officials in strange ways.  We pay them less than they could make as practicing lawyers (at least that is the myth – see the SSF Conference Salary Survey report here from 2007).  Then when a public official has a bad moment, we hold her to a higher standard.

Lori Hittle is a part-time deputy prosecutor in Howard County.  She pleaded guilty to OVWI.  Took her punishment in court, got a month suspension from her job without pay, and now gets a public reprimand. That is a bit more than the normal lawyer gets for such an offense, often getting a private reprimand with JLAP provisions.

But we hold public officials to a stricter standard.

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Finally, Paul Ogden update.

I have commented on the Ogden disciplinary case several times, like here, and here. Paul writes about it on his blog with more regularity than most would. Tuesday Ogden said that the Disciplinary Commission is seeking a one year suspension in his post here. He follows up with more commentary in Thursday’s post here.

I will let Paul Ogden speak for himself.  The issues are complex, and important. As a lawyer, you need to think about them.  If you are not a lawyer, you ought to consider where your rights to speak freely are if the lawyers lose their rights.