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42 Judges J. 17 (2003)
Stick and Stones: Judicial Handling of Invective in Advocacy

handle is hein.journals/judgej42 and id is 161 raw text is: Sticks and Stones: Judicial Handling of Invective in Advocacy By Ty Tasker A n review of case law of American jurisdictions reveals the existence of personal charac- ter attacks by lawyers directed at judges, attorneys, parties, clerks, law clerks, jurors, and witnesses, both inside and outside the courtroom. in criminal and civil actions, and in a variety of contexts, including oral argument and writings. In approximately the last fifteen years., judges and commentators have reported an alarming increase in incivility.' One ,judge poetically observed a cancer of nastiness spreading through the pro- fession's soul.'2 While not every law professional endorses the need for a movement toward increased civility,3 jurists and the overwhelming majority of commentators agree that overzealous advocacy results in a number of undesir- able outcomes.4 However, there are sur- prisingly few reported decisions addressing invective in litigation, considering its frequency in legal proceedings and the trend toward attorney misbehavior. This article offers suggestions regarding the judicial response to invective in advocacy. The Use of Vitriol by Attorneys Lawmakers have not articulated precisely a bright line between ethically zealous argument and improper vituper- ation.5 Instead, given the definitional impediments and the improvisational and zealous nature of arguments, courts understandably have accorded counsel generous latitude in their communications.6 The difficulty of definition revolves around a need to reach an acceptable balance between zealous advocacy and ethical argument. As one judge observed. There's nothing wrong with strong advocacy in the cause of your client ... but it has to be done with respect for... counsel, and respect for the court.'7 Along the same lines, one decision states: To be aggressive is not a license to ignore the rules of evidence and decorum; and to be zeal- ous is not to be uncivil' Redefining a murky line: There are guidelines that give a good idea where the bound- aries lie. In cases where . verbal abuse by one attorney toward fanother have merited discipline, the particular lan- guage and the surrounding circum- stances have come into question.9 In this regard, the guidelines of the American Bar Association have helped clarify the offense. Rule 8.4(d), for example, states that it is misconduct for lawyers to engage in conduct prejudicial to the administration of justice. to However, not all name-calling has been forbidden. Relevant name-call- ing, supported by evidence, is allowed communication.' I It is... considered highly reprehensible to attack the character of counsel or parties,.... at least unless the statements are supported by the record.2 Examples of incivility: The fol- lowing list repeats alleged personal character attacks, as reported in cases, to provide concrete examples of conduct at issue. e Affidavits in opposition to a motion for summary judgment stated that opposing counsel was a little man spewing venom.' 3 * An attorney stated that opposing and other attorneys were a bunch of starving slobs, incompetents. and stooges.'4

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