Don’t be that guy!

June 7, 2016 | by: George A. Somerville | Leave a Comment

Virtually every known book or article on good litigation practices warns against personally attacking judges, opposing counsel, parties, witnesses, or anyone else.  (If that is an exaggeration at all, it is a small one.)  Judges despise ad hominem arguments.  In the words of former Pennsylvania Supreme Court Justice J. Michael Eakin, “there is little to be gained by castigating the other side – if it is apparent they deserve it, you do not need to do so; if it is not apparent, you will be seen as whining and bitter.”  And that, to say the least, is no way to persuade judges or juries of the rightness of your cause.

Yet some lawyers continue doing it.  A recent horrible example, paraded for full public display, is Blixseth v. Yellowstone Mountain Club, LLC, 796 F.3d 1004 (9th Cir. 2015).  “In a recusal motion, Timothy Blixseth and his attorneys hurled nineteen accusations of misconduct at a bankruptcy judge ….”  The bankruptcy judge and the district court rejected all of those charges.  The Ninth Circuit affirmed, “concluding that Blixseth’s accusations were ‘a transparent attempt to wriggle out of an unfavorable decision by smearing the reputation of the judge who made it,’” and then ordered Blixseth and his attorneys to show cause why they should not be sanctioned for pressing the appeal. 

Wouldn’t you think that would be enough?  Surely, you might say, the attorney responded humbly and apologetically, assuring the court that he had learned his lesson and would never do it again.  In fact, four of Blixseth’s attorneys responded more or less in that fashion, and the court sent them away with a mere verbal chastising:  “The fact remains, however, that these lawyers allowed their names to be placed on briefs that presented frivolous and inflammatory arguments.  But a finding of frivolousness does not automatically result in sanctions….  We believe that their response to the order to show cause and our comments today will serve as a sufficient warning to them to act more responsibly in the future.”

Blixseth and his lead attorney apparently needed more convincing.  Their “response” was “almost entirely nonresponsive,” mostly reiteration of a conspiracy theory that the Court of Appeals had already rejected as “wholly unfounded,” and they “fail[ed] to defend many of the nineteen frivolous accusations they raised.”  They also spent “significant time discussing facts outside the record” and relied on a document found in another case to have been forged.  Yet even that was not enough; their response to the order to show cause “also hurl[ed] baseless accusations” against one of the judges on the appellate panel!  The court ordered Blixseth and the attorney to pay appellees’ attorneys’ fees and costs in defending the appeal and $500 each “in damages to the Clerk of Court as reimbursement for the costs incurred during this frivolous and bad-faith appeal.”

I end where I began:  Don’t be that guy!  You will win neither friends nor cases, and you may end up pilloried in judicial opinions and scorned in lawyers’ blogs as a result.  Blixseth’s lawyer’s final declaration — that “the judicial system in this country is broken” and “they will not silence me ….  I feel like Gandhi taking on the Brits.  They have all the power on their side, but I have the truth.  Somehow the truth always comes out” ( — is not worth the price that he has paid.


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