I recently picked up an opposing brief in an appeal I'm handling. My opponent made some good points, but he also went after me. He called my arguments “facile,” said one of my factual assertions was “pure fantasy,” accused me of “embellishing the record,” called my inclusion of a particular case “simply inexcusable” and said my brief was “unwittingly, its own worst enemy.” To top it off, he said one of my contentions was wrong “except in respondents' fevered minds.”

When you're about to write something like this, stop and think. Ask yourself, “What if I were one of the appellate justices reading this brief? Would I find these characterizations persuasive? Would they push me towards ruling for the brief writer?” Not me. I'd be persuaded by facts, law and policy arguments—not by personal accusations and adjectives against a lawyer. “Beyond not helping, could they actively hurt the chance of persuading me?” Yes.

Instead of thinking about the merits of the writer's arguments, I'd think, “What an unprofessional jerk. Does he really think I'm stupid enough to fall for these attacks? Maybe his arguments aren't as good as I thought they were.”

Show, don't tell

A jury assesses a trial lawyer's credibility, and an appellate justice assesses an appellate lawyer's credibility. Once either opinion takes a dive, it's hard to pull it back up.