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Court of Appeals Urges Professionalism in Persuasion

January 25, 2013

In a recent decision, the Federal Circuit Court of Appeals criticized the parties involved for the use of excessive hyperbole in their written submissions to the court, urging instead that counsel should offer a straightforward recital of the facts without the use of such shrill language. Clients sometimes believe that their attorneys should be “aggressive” to win, but this recent decision proves yet again that sound legal skills coupled with professional behavior trumps aggressive tactics and harsh language every time.

The particular case is Nissim Corp. v. Clearplay, which in itself is a fairly routine patent infringement case related to the use of an invention that can skip over or filter out unwanted content when playing DVD movies. In the course of addressing an appeal involving questions of infringement, the court addressed the behavior of the litigants and the role it played in the case, stating:

“The excessive hyperbole in the briefs makes them difficult to take seriously and unpleasant to read, and strips both parties of their credibility. Nissim characterizes ClearPlay’s arguments as ‘moan[ing],’ ‘excuse[s],’ and ‘absurd’; it describes one of ClearPlay’s communications with the special master as ‘bias-inducing screed.’ ClearPlay’s briefs are no better; disparaging Nissim’s suit as ‘unnecessarily time-consuming and expensive,’ ‘ill-conceived,’ ‘wast[ing] the time and resources of ClearPlay and the [c]ourt,’ and a ‘massive waste of judicial time and resources,’ and referring to Nissim’s arguments as ‘inexplicable,’ ‘strange,’ and ‘baffling.’ The record reveals the parties’ behavior in the district court proceedings to be even worse. The parties would be well-advised to take the advice of Justice Scalia and Bryan Garner: ‘Cultivate a tone of civility, showing that you are not blinded by passion. . . . A straightforward recital of the facts will arouse whatever animosity the appellate court is capable of entertaining, without detracting from the appearance of calm and equanimity that you want to project.’ Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 34-35 (2008).

The parties’ poor judgment extends beyond their choice of words. For example, Nissim stated that ‘the district court stuck Nissim with ClearPlay’s trivial gesture’ and that the court’s decision ‘mock[ed] justice.’ These statements were at best unprofessional. See ABA Model Rules of Professional Conduct Rules 3.5, 8.4(d). ClearPlay’s statements throughout its brief that Nissim had requested only prospective relief were obvious misrepresentations that cannot easily be explained away as mistakes. See id. Rule 3.3(a).”

There is surely room for attorneys to convey a sense of importance when advancing their clients’ positions, but the art of persuasion stops short of hyperbole and belittling the opposing party. In this insightful decision, judges make it quite clear that such aggressive tactics are not only unprofessional, but ineffective and counterproductive as well. 

filed in: Litigation

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Lawrence D. Graham

Lawrence D. Graham

Our attorneys regularly produce substantive memoranda and news, addressing legal advancements in Trademarks, Intellectual Property, Patents and Litigation.

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