Circuit Courts Warn: The New “F-Bomb” In Litigation Is “Frivolous”

Michael E. McCabe, Jr.Duty to Tribunal0 Comments

f bombIt pays to be nice. That is the message from two recent Circuit Courts of Appeal decisions that criticized parties for lack of civility because counsel characterized their opponent’s arguments as “frivolous.”

In the first case, Bennett v. State Farm Mut. Auto. Ins. Co., 731 F.3d 584, 585 (6th Cir. 2013), the Sixth Circuit reversed a judgment in favor of State Farm in a dispute over insurance coverage.  The Court’s opinion began with a stern rebuke of State Farm’s appeal brief:

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.” But here the biggest reason is more simple: the argument that State Farm derides as ridiculous is instead correct

And in First Weber Group, Inc. v. Horsfall, 738 F.3d 767, 779 (7th Cir. 2013), the circuit court, citing Bennett, chastised counsel for their lack of civility for using the “f-word” in brief.  The Seven Circuit remarked, “We take this opportunity to caution the parties and the bar that they should not lightly label their opponents’ arguments as frivolous.”

Several district court cases, citing Bennett and First Weber, have similarly criticized parties for calling their opponent’s arguments “frivolous.”  In one bankruptcy court case, the court complained that, “In its Reply on Summary Judgment, Climatemp’s counsel resorts to calling Trustee’s arguments “ridiculous” and his claims “frivolous.” In its Reply on its Motion to Strike, Climatemp’s counsel calls Trustee’s position and arguments “nonsensical.” Neither the Seventh Circuit nor the undersigned approve of this language.”

Perhaps these courts are overly sensitive.  Indeed, I have read many court opinions that refer to counsel’s position as “frivolous.”  Or, perhaps some jurists have reached a tipping point where they are tired of hearing lawyers insult one another.  While none of these cases resulted in sanctions, at some point it seems likely that a court will do more than just issue a warning to “be nice.”

The take away from these recent cases  is that there are other words that can be used to effectively advocate your client’s position without attacking your opponent.  For example, more understated terms, like “lacks merit,” “unfounded,” “without support,” “contrary to law (or fact),” may be appropriate substitutes for “frivolous.” Those words call out the flaws in an opponent’s position without devolving into a game of name calling.

Overuse of the term “frivolous” also is a sign of a lazy lawyer.  It is easy to simply write in a brief that the opponent’s argument is frivolous.  But simply saying it does not make it so.  Great advocates can demonstrate the merits, or lack of merit, of one position or another by great writing.  It is much more persuasive and powerful for the court to reach its own conclusion that in fact your opponent’s position is “frivolous.”  Getting to that point means working hard at writing, rewriting, and rewriting.

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