by: Peter J. Gallagher (LinkedIn)
This should probably be obvious, but apparently it wasn’t, at least to one California lawyer. So, in a published opinion, Briganti v. Chow, the California Court of Appeals included a “Note on Civility, Sexism, and Persuasive Brief Writing” to remind that attorney, and all of us, that this is not a good way to start a brief .
The dispute in Briganti was straightforward. Plaintiff sued defendant for allegedly defaming her in a Facebook post. Defendant moved to strike plaintiff’s complaint under California’s anti-SLAPP statute. (As an aside, only John Oliver could entertain and inform when talking about Anti-SLAPP statutes.) The trial court denied the motion in part and granted it in part. The Court of Appeals affirmed.
But the interesting part of the decision, and the sole reason the Court of Appeals chose to publish it, was its “concluding note on civility, sexism, and persuasive brief writing.”
The impetus for this “concluding note” was defendant’s reply brief, which began:
[Plaintiff] . . . claims that . . . [defendant] defamed her by claiming she was ‘indicted’ for criminal conduct, which is the remaining charge [in the case] after the [trial judge] . . . an attractive, hard-working, brilliant, young, politically well-connected judge on a fast track for the California Supreme Court or Federal Bench, ruled for [defendant] granting his anti-SLAPP Motion to Strike Respondent’s Second Cause of Action but against [defendant] denying his anti-SLAPP Motion against the First Cause of Action . . . . With due respect, every so often, an attractive, hard-working, brilliant, young, politically well-connected judge can err! Let’s review the errors!
Now, the former legal writing instructor in me is bothered by the 80+ word opening sentence, the use of exclamation points (two of them, no less!), and the inclusion of “[w]ith due respect” (which always precedes something entirely disrespectful). But that isn’t the real problem with this paragraph, as the Court of Appeals correctly noted.
Although counsel explained that he “intended to compliment” the trial judge with his statements, the Court of Appeals nonetheless concluded that his opening paragraph “reflects gender bias and disrespect for the judicial system.”
Even with record numbers of women graduating from law school and entering the legal profession, and the increase in women judges, the Court of Appeals observed that women in the legal profession continue to encounter bias, both explicit and implicit. The Court of Appeals flagged counsel’s comments as an example of this continued bias:
Calling a woman judge – now an Associate Justice of this court – “attractive,” as [defendant] does twice at the outset of his reply brief, is inappropriate because it is both irrelevant and sexist. This is true whether intended as a compliment or not. Such comments would not likely have been made about a male judge.
The Court of Appeals continued, noting that gender bias was a “subcategory of the larger scourge of incivility afflicting law practice.” It observed that “objectifying or demeaning” a member of the profession is “uncivil and unacceptable,” and when done to a judge, as in Briganti, “demean[s] the serious business of [the] court.”
The Court of Appeals ended its “Note on Civility” by thanking the “many talented lawyers whose excellent briefs and scrupulous professionalism make [the court’s] work product better and [its] task more enjoyable.” It even “recognize[d] [that] ‘every brief presents opportunities for creativity – for imaginative approaches that will convey the point most effectively.'” But the Court of Appeals concluded that it “simply [did] not find the peculiar style and content of this brief’s opening paragraph appropriate, helpful, or persuasive.”
[Final Note: The Court of Appeals began its “Note on Civility, Sexism, and Persuasive Brief Writing” by explaining that it included the stand-alone section, which was the whole reason it chose to publish the decision, “not to punish or embarrass, but to take advantage of a teachable moment.” I take the Court of Appeals at its word on this. But this sounds a bit like saying “with due respect” right before saying something that might not be received as respectful.]