Twice in a month, insurance defense lawyers have been upbraided and in the news for inserting nasty little footnotes in their briefs — footnotes accusing the trial judge of misconduct, rather than mere misunderstanding or misapplication of the law. We covered the first incident in our posting on July 27, concerning an Indiana attorney. Now, How Appealing has uncovered a similar situation (August 19, 2003), in a decision by the U.S. Court of Appeals for the 10th Circuit:
“One final point. Baseless attacks on the integrity of the district court are inappropriate even in offhand conversation. Here, Travelers’ brief could easily be read as accusing the district court of misconduct, rather than simple legal error. Travelers’ counsel must exercise greater care in the future. The record contains nary a hint of impropriety by the trial judge.”
What’s up? I’m thinking some smart-aleck appellate lawyer wrote a snappy, irreverent footnote a few years ago, and it has been floating around the insurance defense bar ever since, passed on from one frustrated, smirking scribe to another. Maybe it’s even become ill-conceived, hyperbolic, anti-bench boilerplate.
I’m hoping that insurance-oriented blawggers (e.g., Doug Simpson at Unintended Consequences , Dave Stratton at Insurance Defense Blog, or George Wallace at Declarations and Exclusions) will find the source of the footnote. Even if we never know the original miscreant, let’s hope the offending words and notions have been deleted from word processing documents across the insurance defense bar.
Attacking a judge’s integrity in a footnote is both tacky and bad strategy. Luckily, you can’t get disbarred for what you’re thinking.
Update (8/22/03): Talk about quick service! George Wallace at Declarations & Exclusions has already responded to my question with dilgent and wise counsel. Here’s an excerpt from his reply, which I hope you’ll read in full:
I think David is too willing to detect conspiracy in this case. So far as I know or have been able to determine, there is no pre-fab footnote being shared among insurance counsel to be trotted out when one of us feels the urge to suggest that a lower court judge was not merely wrong, but crooked. And there is a simple reason for my belief that the thing Does Not Exist: Why circulate an all-occasion anti-judicial j’accuse when very few insurance attorneys would be foolish enough to use it? It is to be hoped that very few attorneys, period, regardless of their field of specialty, would succumb to that temptation.
Conspiracy theorist? Who, me?