That's Your Argument? Really.

C’mon. Admit it. You have wanted to reply to that Summary Judgment brief with your very best Bill Maher on. Maybe you even did write that first draft with the sort of tone your mother-in-law might use.

If you let that first draft be your final draft, though, beware of Illinois Judge Diane Cannon, who had nothing nice to say to two Sidley & Austin attorneys regarding the tone of their arguments. The National Law Journal reports on the doings at the November 10, 2009 hearing here. At what sounded like a fairly contentious hearing on a Motion to Quash a subpoena against Sidley’s clients, two Northwestern University journalism students, Judge Canon made a heated point of castigating Sidley partner Richard O’Brien and his associate Linda Friedlieb about their brief:

Cannon, who was a state prosecutor before being elected a judge in 1996, turned on O’Brien, saying the case was “no laughing matter” and castigating him for submitting a brief that, she said, didn’t include attorney names and was “dripping with sarcasm.” “It is reprehensible,” a steaming Cannon said, calling the Oct. 5 brief an editorial not fit for court.

The judge said an imprisoned pro se litigant had submitted a more appropriate brief in another case earlier that day and added that Karen Daniel, a Northwestern University School of Law professor who represents McKinney, had never submitted such a brief. O’Brien had difficulty interrupting her to call attention to the attorney names on the last page with Friedlieb’s signature.

I KNOW I have quelled the urge to “write it as I see it” in pleadings, letters and other legal communications. The comedienne in me runs deep but the professional in me knows better. Still, though, there are times …..

You can get your copy of the offending pleading here. Let me know what you think. Did these Sidley attorneys overstep their professional bounds or were they merely acting as zealous advocates?

Hat tip to Legal Writing Prof Blog.

5 comments on “That's Your Argument? Really.

  1. I took a quick look at the brief. While the tone is over the top in its attack on the State’s counsel (particularly the assertion at p. 3 that “The State must not understand the respective roles of the government the media in our society.”), I’ve seen worse name-calling (pardon me, ad hominem attacks) of parties and counsel elsewhere. One should consider the following factors in evaluating what happened here:

    1. In many respects, defense counsel was giving as good as it got from the State. See p.3:

    “the State argue[d] ‘the School believes it should be exempt from the scrutiny of this Honorable Court and the justice system, yet it should be deemed a purveyor of its inadequacies to the public.'”

    2. As noted in the NLJ article
    ( http://www.law.com/jsp/article.jsp?id=1202435339263&pos=ataglance&hbxlogin=1 ) , Judge Cannon is an ex-Cook County prosecutor–not the person I would like to draw if I were presenting a motion to quash a third-party subpoena from the prosecution.

    3. It appears that at the least, the brief lacked the formal introductory paragraph beginning “Now comes petitioner. . . ” and perhaps other errors of style in presentation. Such an error of form (if in fact it wasan error) was certainly ill-advised and was (from a drafter’s perspective, the most inexcusable thing I saw.

    Admittedly, I don’t think this case is the slam dunk on the merits counsel (on both sides) believes it to be. [A defense of the prosecution position at least as to interview notes can be found at http://phibetacons.nationalreview.com/post/?q=NDNkZTI4NzRkOTVkNWUwM2JjZTlkOTI3YTgyYmRmZGQ= [National Review Online]. Much of the briefing on this case seems to have produced more heat, instead of enlightenment.

  2. In essence, “a tale … full of sound and fury, signifying nothing.” My sense was that the efficient proximate cause of this problem was your point number 2, having practiced in Cook County and being cognizant of the interesting dynamics at play in the fine City of Chicago. I am betting there is even more to this story that immediately apparent from the National Law Journal blurb. I completely agree that the response seemed a bit extreme when compared to the Sidley transgressions. I suppose the other side of the coin is the fact that there really shouldn’t be errors like this from a firm of Sidley’s caliber.

    Cheers,

    Martha

  3. Six pages in – not a great brief, but not the dripping sarcasm and derision I have respected and seen in pleadings before.

    The first link is broken — extra http in there but I figured it out.

    Thanks for sharing!

  4. Second take – quote from article:

    Cannon, who was a state prosecutor before being elected a judge in 1996, turned on O’Brien, saying the case was “no laughing matter” and castigating him for submitting a brief that, she said, didn’t include attorney names … (snip)

    O’Brien had difficulty interrupting her to call attention to the attorney names on the last page with Friedlieb’s signature.

    “You have to put your name on it as an officer of the court,” Cannon said, explaining that the brief must start with “now comes petitioner” so-and-so. When O’Brien tried to speak, Cannon cut him off and told him to put his response in writing.

    … forgive me, maybe courts there require people to start Now Comes Petitioner but that is not in the ruels anyplace I have appeared and seems like a silly place to start. The judge was ripping counsel for not having their name on the pleading and it sure looks to me like they signed at the bottom and everyone can see it.

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