Snarky or hard hitting?


The blogosphere has been chatting about the smackdown an Illinois judge gave to Sidley lawyers for a reply brief they filed to quash a subpoena on behalf of some Northwestern (my alma mater) students.  The judge called it "dripping with sarcasm" and worse than a pro se brief filed with her that same day.

You can read the brief yourself by following the links here.

Personally, I don't think it's that bad.  It calls the State wrong ("utterly, plainly" etc. so), and at one point its argument "nonsensical," but I don't see any sarcasm. Most of the commentators agreed with my assessment; you be the judge. 

This is a First Amendment case, and people arguing that the First Amendment supports them sometimes have a tendency to be self-righteous, which may put off some judges.  Still, the State called Sidley's opening brief an "insult", the judge mistakenly thought there was no lawyer signature on the Sidley brief, and it seems that everyone got their nappies in a knot instead of focusing on the facts and the law.  Those underlying facts might have something to do with that – the students are investigating whether a convicted murderer was really innocent, and the State is saying that one of the students paid a bribe to a witness who wasn't there.  So emotions are running high.  

The lesson here,I think, is always lean on the side of temperance, and avoid adjectives and adverbs.  Be subtle with your advocacy.  You never know what the decision-maker will think is inappropriate, so you'd better not err on the side of overreaching.  Understatement is always more effective – if you do it right.