Court Strikes "Inflammatory" Briefs and Orders Do-Over

• Pages: 8-8
• Date: 01 July 2023
• Author: Jared H. Lorenz
• Subject Matter: Civil Law

Published in Litigation News Volume 48, Number 4, Summer 2 023. © 2023 by the Amer ican Bar Association . Reproduced with pe rmission. All rights re served. This info rmation or any porti on thereof may not be c opied or disseminated in an y

form or by any means or sto red in an electronic da tabase or retrieval sy stem without the ex press writt en consent of the Amer ican Bar Associatio n.

In a cautionary tale, a federal district

court ordered counsel for litigants

on both sides of the case to revise

and ref‌ile briefs that were “riddled

with inf‌lammatory language.” The

court concluded that the counsels’

conduct “[ran] afoul of the tenets of

professionalism” and further ordered

the parties to also submit brief‌ing on

whether the matter should be referred

for disciplinary proceedings.

In Wiegand v. Royal Caribbean

Cruises, Ltd., the plaintis—parents

of a child who died while on a cruise

ship—sued the cruise company for

wrongful death. The plaintis moved

for partial summary judgment, which

included a section entitled “Royal

Caribbean’s Egregious Post-Incident

Conduct.” In the brief, the plaintis

“accuse[d] the defendant of ‘lying to

authorities,’ ‘attempting to deceive

this Honorable Court,’ and engaging

in ‘corporate misconduct [which]...

appears to know no bounds.’” The

plaintis also alleged the defendant’s

captain lied to government actors

and that the defendant made “merci-

less eorts to frame an innocent man,

intentionally destroy evidence, and

mislead this Honorable Court (and the

U.S. Coast Guard and the Puerto Rican

authorities).” Additionally, the plaintis

claimed that the defendant continu-

ally changed its story and purposely

destroyed evidence.

The defendant struck a similar tone

in its briefs. It made statements such

as “[i]t strains credulity that Plaintis’

counsel f‌iled this motion out of a genu-

ine belief that meritorious grounds exist

to support summary judgment” and that

the plaintis’ motion was “a salacious,

unfounded and libelous hit piece.”

The U.S. District Court for the

Southern District of Florida entered

an order sua sponte “to address what

the Court characterizes as unprofes-

sional language.” It noted that the

Florida Bar Oath of Admission requires

attorneys not only to be civil in writ-

Court Strikes “Inf‌lammatory” Briefs

and Orders Do-Over

ten and oral communications but also

to “abstain from all oensive person-

ality and [to] advance no fact preju-

dicial to the honor or reputation of a

party or witness, unless required by

the justice of the cause.” The court also

observed that the Florida Bar Creed of

Professionalism provides that attorneys

will abstain from “all rude, disruptive,

disrespectful, and abusive behavior and

will all times act with dignity, decency,

and courtesy.”

Based on those standards, the

court concluded that “the conduct dis-

played by counsel for both Plaintis

and Defendant runs afoul of the tenets

of professionalism set forth by the

Florida Bar” and compared the f‌ilings

to a “f‌ictional novel or a script from a

tabloid Jerry Springer television show.”

Moreover, because the plainti had pre-

viously raised arguments relating to the

destruction of evidence and inconsis-

tent testimony in a motion for sanctions,

the court suggested that the purpose of

repeating such allegations was “solely

for the inf‌lammatory purpose of paint-

ing the Defendant in a negative light.” It

advised that “[a] professional pleading

does not cast aspersions toward attor-

neys, parties, or witnesses.”

Accordingly, the court struck the

oending briefs and ordered them to

be ref‌iled “omitting the inappropriate

language.” The court also ordered the

attorneys who prepared the briefs at

issue to submit brief‌ing on whether the

matter should be referred to the court’s

Committee on Attorney Admissions,

Peer Review, and Attorney Grievance.

ABA Litigation Section leaders

highlight the frequency of such attor-

ney conduct. “Sadly, the type of lan-

guage called out by the court is all

too common in legal writing. It took

these lawyers years to learn to write

that way and will take years to unlearn

these bad habits,” remarks Michael S.

LeBo, Newport Beach, CA, cochair

of the Litigation Section’s Professional

Liability Litigation Committee. “Calling

By Jared H. Lorenz, L itigation News Contributing Editor

out these lawyers should be enough;

however, if the conduct continues, a

referral to the grievance committee

may be the appropriate next step,”

LeBo adds. He notes that while this

conduct is common, courts typically

ignore these types of comments. “Until

courts call out this type of writing, I do

not believe attorneys will stop injecting

personal insults into their legal writing,”

predicts LeBo.

“Part of good business and good

client management is setting the tone

of litigation. Counsel should know, and

should fully inform the client, of the

risks that arise from inf‌lammatory or

salacious arguments,” oers Tiany

Rowe, Washington, DC, cochair of the

Section’s Professional Liability Litigation

Committee. “The parties seem to have

gotten caught up in the back and forth,

trying to hit back harder. I’d advise the

client that, when they go low, we go

high,” notes Rowe. “An attorney’s repu-

tation is more important than any one

client. If the client insists that you put

your name on unprofessional and insult-

ing language, it is time to get a new cli-

ent,” concludes LeBo.

RESOURCES

Siob han A. Cullen, “Ci vility in the Practice

of Law,” Prods. Liab. Litig. (May 22, 201 8).

Peter S . Poland, “King A rthur, Rambo, and

the Origins of C ivility at the Bar,” Litig. J.

(Winter 2016).

Kathr yn Nadro, “‘Mae lstrom of

Misconduc t’ Generates Bev y of Bench

Slaps,” Ethics & Professionalism (Jan. 19,

2016).

SUMMER 2 023 • VOL. 48 NO. 4

8 | A BA LITIGATION SECTION

ETHICS STRU GGLES IN THE LEGAL WORLD