In appellate advocacy, where do you draw the line?
Yesterday's Daily Journal reported on an oral argument before the Ninth Circuit on Monday in which Judge Harry Pregerson rebuked the appellant's counsel for filing an "arrogant" brief that insulted the district judge. Thanks to über-blogger Howard Bashman, the brief in question is available online, along with a further summary of press coverage of the oral argument. According to the Daily Journal:

"Do you regard this as an effective way to present written advocacy?" Circuit Judge Harry Pregerson asked nationally recognized appellate specialist Theodore J. Boutrous Jr. of Gibson, Dunn & Crutcher in Los Angeles. "You slam the district judge?" .... "I was a district judge for 12 years and if I read all that, I wouldn't like it," said Pregerson .... "I think you ought to apologize to the district judge."

Sometimes the line between advocacy and insult can be a fine one (although apparently not in this case). When you represent the appellant, your job is to argue that the trial judge made a mistake, plain and simple. I've always assumed that trial judges understand this reality, and won't take it personally (or retaliate against your client later) if you forcefully argue for reversal. It will be interesting to read a brief that Judge Pregerson believes crosses the line. You can also listen to the oral argument at this link (thanks again to Howard Bashman).
- posted by Kim Kralowec @ 9:34 AM