In this day of #MeToo, one lawyer learned this lesson the hard way when he received a public hand slap from the Court of Appeal of the State of California because of “highly inappropriate” rhetoric he chose to employ in his appellate brief on a defamation case, Briganti v. Chow 19 DJDAR 10941 (11-22-19) (DCA 2).
The attorney wrote referring to the trial judge, Gail Ruderman Feuer (now an Associate Justice of the very appellate court in question),
“Briganti … claims that … Chow defamed her by claiming she was ‘indicted’ for criminal conduct, which is the remaining charge [in this case] after the [trial judge] … an attractive, hard-working, brilliant, young, politically well-connected judge on a fast track for the California Supreme Court or Federal Bench, ruled for Chow granting his anti-SLAPP Motion to Strike Respondent’s Second Cause of Action but against Chow denying his anti-SLAPP Motion against the First Cause of Action …. With due respect, every so often, an attractive, hard-working, brilliant, young, politically well-connected judge can err! Let’s review the errors!”
I’m not sure whether this particular attorney found this a humorous piece of rhetorical genius or what he was trying to do, but the Court of Appeal took it as an opportunity for a “teachable moment.”
Said the Court, “Calling a woman judge – now an Associate Justice of this court – ‘attractive,’ as Chow does twice at the outset of his reply brief, is inappropriate because it is both irrelevant and sexist. This is true whether intended as a compliment or not. Such comments would not likely have been made about a male judge.”
Citing the California Code of Judicial Ethics, canon 3B(6)(a), the Court wrote,
“The California Code of Judicial Ethics compels us to require lawyers in proceedings before us ‘to refrain from … manifesting, by words or conduct, bias, prejudice, or harassment based upon race, sex, gender, gender identity, gender expression, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation …’ That goes for unconscious as well as conscious bias.”
In conclusion, the court extended its “thanks to the many talented lawyers whose excellent briefs and scrupulous professionalism make our work product better and our task more enjoyable. Good brief-writing requires hard work, rigorous analysis, and careful attention to detail. Moreover, we recognize ‘every brief presents opportunities for creativity—for imaginative approaches that will convey the point most effectively.’ We welcome creativity and do not require perfection. We simply did not find the peculiar style and content of this brief’s opening paragraph appropriate, helpful, or persuasive.”
The Court cares about civility in practice.
What’s the moral to this “teachable moment”? Simply, the Court cares about civility in practice. Practitioners need to be very careful to avoid – even if it is intended as a compliment – using language that may objectify or demean a member of the profession, particularly if the language invokes gender, race, sexual preference, gender identity, or other similar characteristics. Being creative or cute in a demeaning way can lead to professional discipline.