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Sticks and Stones May Break My Bones . . . But You Still Don't Have Standing

Underwater life. Aquarium cartoon fish ocean and sea animals vector background. Illustration of underwater sea with fish, octopus and jellyfish What's so bad about an octopus?
By Joseph Fawbush, Esq. on July 29, 2020 10:12 AM

Adding color to your legal writing is a good idea. Vivid imagery and analogies can make a legal point stick in the minds of judges. But there is a line that you don't want to cross as an attorney, which is exemplified by a recent opinion issued by the Sixth Circuit.

The Sixth Circuit drew the line at saying your opponent is "affixing its buzzard-like grin . . . ready to ravenously pounce upon the medical facilities in these areas like the buzzard swoops down upon the carcass of a dead cow."

Or: "A virus has been effectively introduced into the [defendants' board] which has sickened all 11 directors, and which requires their permanent quarantine." And the kicker: The defendants are "intertwined in an incestuous relationship, the likes of which have not been seen since the days of Sodom and Gomorrah."

I mean, points for creativity. But maybe stick to fan fiction. Also, too soon on the virus analogy.

Doubling Down on the Insults

Creative, animal-inspired insults appear to have been a strategy of plaintiffs' counsel, who was suing a Tennessee healthcare conglomerate for violating the Clayton Antitrust Act. In briefs submitted to the U.S. District Court and the Sixth Circuit, counsel for plaintiffs came in hot. The favorite analogy was to a "bottom-feeding, spineless octopus" that comes out of its "hidey-hole to wreak havoc upon its fellow ocean creatures."

The defendants took offense at this language, but plaintiffs' counsel wasn't deterred, writing in an amended complaint that the District Court could "draw its own conclusions" to the comparison to Marshal Pétain's surrender of France in WWII, among other aspersions.

Okay, said a unanimous Sixth Circuit panel. But nothing in the amended complaint gave the plaintiffs standing. As Judge Amul Thapar put it, "the additional pages added only insults, not an injury." And in this case, covering up for lack of a specific, concrete injury with specific, concrete insults didn't cut it.

Vigorous, Not Vile

Civility remains an essential part of the legal profession. As an officer of the court, attorneys must behave with a certain amount of decorum, even if emotion, strong language, and creative comparisons are occasionally the most effective ways to advocate for a client.

I'm all for being forceful and creative in persuasive legal writing. And if you can pound neither the law nor the facts, by all means pound the table. But if you've run out of insults and need to repeatedly compare the defendants to an octopus, it's probably time to take a minute and re-think the strategy.

Related Resources

Why Engaging Prose Matters in Persuasive Legal Writing (FindLaw's Strategist)

3 Tips for Becoming a Dangerous Persuasive Writer (FindLaw's Strategist)

Nina Pham's Lawsuit: Strange Font Choices ... and Pictures? (FindLaw's Strategist)

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