THERE ARE GOOD REASONS NOT TO CALL AN OPPONENT’S ‘RIDICULOUS’ : PARTICULARLY IF THEY ARE, IN FACT, CORRECT

This blog has looked at issues relating to written submissions many times. Included in this has been the need to avoid hyperbole, which often backfires.  A good example, borrowed from the United States, is the judgment in Bennett -v- Start Farm Mutual Insurance Company  (United States Courts of Appeal 6th Circuit).

“There are good reasons not to call an opponent’s argument “ridiculous,” which is what State Farm calls Barbara Bennett’s principal argument here. The reasons include civility; the near-certainty that overstatement will only push the reader away (especially when, as here, the hyperbole begins on page one of the brief); and that, even where the record supports an extreme modifier, “the better practice is usually to lay out the facts and let the court reach its own conclusions.” Big Dipper Entm’t, L.L .C. v. City of Warren, 641 F.3d 715, 719 (6th Cir.2011). But here the biggest reason is more simple: the argument that State Farm derides as ridiculous is instead correct.”

THE DISPUTE

The issue related to the extent of coverage to be supplied by the defendant insurer. The claimant was struck by a car and thrown into the hood.  The court held that the fact that she was on the hood made her an “occupant” of the vehicle. The insurer described this argument as “ridiculous”. As can be seen above the “ridiculous” argument was, in fact, correct.

THE BIG DIPPER CASE

Similar statements were made in the “Big Dipper” case referred to in the judgment. In that case the City had barred “sexually oriented businesses” from operating in its area. The business appealed

“We turn to the district court’s application of this methodology. The court began its analysis by finding that the amended § 14.01(s) left a total of 39 sites available to Big Dipper’s business. (The 7001 Convention Boulevard site was not among them.) Big Dipper criticizes that finding in notably harsh terms, asserting that the district court “made no pretense” of applying the proper summary-judgment standard, that the court’s analysis of the issue (in a 32–page opinion) was “cursory,” that the court “chose to disregard” the “voluminous and detailed analysis” set forth in the report of Big Dipper’s expert, Bruce McLaughlin, and so on. (Big Dipper similarly accuses opposing counsel of making “egregious misstatement[s]” to this court, etc.)

Arguments like these—which casually impugn the motives of the district court or, more commonly, opposing counsel—are regrettably common of late. So we think it worthwhile to comment on them. In our view, a party should think twice about questioning the district court’s integrity or that of opposing counsel. That two persons disagree does not mean that one of them has bad motives. And even in the worst cases, the better practice is usually to lay out the facts and let the court reach its own conclusions.

In any event, Big Dipper cannot back up its charges here.”