As an appellate advocate, I often have to tread lightly when talking about what the lower court has done. After all, most issues on appeal boil down to "the lower court messed up," in on way or another. I do my best, as I think most advocates do, to distance any criticism of the lower court's decisions with the court itself and avoid resorting to name calling. Because that hurts the advocate's credibility in front of the appellate court, especially if he appears before the same court routinely.
It can also be costly. Witness this story from the ABA about a Utah law professor who is looking at paying out $17,000 due to statements made in his briefs before that state's supreme court. What exactly did he say?
In briefs filed with the Utah Supreme Court, the University of Utah S.J. Quinney College of Law professor wrote that 'good judges never fabricate evidence,' and that the appellate court opinion was 'no innocent mistake.'Oral argument was no better, as he "compared the appellate court’s alleged behavior to war crimes in Iraq."
'So, if a court fabricates evidence, whether intentionally, negligently or through innocent mistake, it destroys the moral premise of the legal system,' Dyer wrote. 'A judge who fabricates evidence, even from a sincere motive to do justice in a particular case, has no moral standing whatsoever.'
As a result of that hyperbole, Dyer was ordered to pay opposing counsel's fees, estimated to be about $17,000, To be fair, Dyer's taking his punishment standing up:
“I was wrong, and I deserve the sanctions,” Dyer says. “As soon as the case came down, I immediately telephoned Mr. Barnes and said, ‘Send me your bill.’ If I’m out $17,000, I’m out $17,000.”
Me, I'll just try and hold my tongue - I doubt there's $17k in my office's budget to cover a slip!
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