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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