By Chinua Asuzu
Advocacy requires disciplined civility. A brief should address the court with deference, treat opposing parties and counsel with respect, and (in appellate contexts) avoid any pejorative description or innuendo aimed at the trial judge. The advocate’s voice should be cool, tolerant, temperate, and measured.
Brief-writing aims not to slay an enemy but to persuade a legally trained reader. Harsh attacks on the lower court are especially risky because appellate judges may instinctively identify with the judge whose decision is under review. Unfair criticism can therefore provoke judicial impatience or solidarity rather than agreement.
The same restraint applies to opponents, opposing briefs, parties, and witnesses. Nasty, derisive, or mocking comments seldom help. If the opposing side’s conduct or argument is genuinely defective, judges can usually see that without counsel’s theatrical assistance. Denunciation may even arouse sympathy for the target. Ridicule is particularly dangerous because an argument that seems absurd to counsel may appeal to the judge or may only seem absurd because counsel has not fully understood it.
Humor is equally hazardous: its success depends on the recipient, and judges may receive jokes unpredictably or resent them altogether. A brief is not a forum for comic experimentation, sarcasm, or literary display.
Candor is equally important. Justice Ginsburg’s advice to be scrupulously honest is especially forceful when describing what the lower court decided. Appellate judges often read the decision below before reading the briefs. If counsel then mischaracterizes that decision, the court is likely to distrust counsel and become impatient with the argument. Accuracy, fairness, and professional self-command strengthen credibility and preserve judicial attention.
The advocate should avoid diatribes, immature polemics, ad hominem attacks, condescension, sarcasm, insult, and pettiness. Such tactics distract from the merits, suggest weakness, and may even invite sanctions. Gerry Spence’s advice captures the point: avoid scorn and ridicule, use humor cautiously, withhold insult, and respect the opponent.
Litigation is adversarial, but advocacy need not be belligerent. Counsel may contend without being contentious and disagree without being disagreeable. Words such as “obviously,” “clearly,” and “preposterous” often sound like table-pounding substitutes for reasoning. True persuasive strength lies in substance, restraint, accuracy, and respect.
Summarized from Chinua Asuzu, Brief-Writing Master Plan (Partridge, 2022), 366–369.
