Drafting Tip: Assume The Court Is Hostile

The title of this post may seem melodramatic; after all, even if we grumble about rulings from judges or occasionally about “home cooking,” where local lawyers (or friends of the judge) get what we perceive as better treatment than others without the personal relationship, we generally, as attorneys, have to believe that judges are fair and that they want to make the right call.

But every once in a while, you get an opinion back where it really looks like the court was looking for a reason to rule against you. The problem is that judges are human, just like everyone else – and sometimes they make mistakes. This is one that cost a client four thousand dollars in Litigation Accountability Act sanctions, and a simple drafting correction could have at least made the court work harder to get there.

CONFESSION: I spent a lot of time thinking about whether to write this post. I have nothing but the deepest respect for our judiciary, and I feel somewhat like the child pointing out the emperor has no clothes in this. Judges being, again, human, I know that there is a potential for retaliation against me or my clients for calling out the Court of Appeals publicly like this; but I hope that if this post is read by judges that they will a) understand the spirit in which this is offered – i.e., to help lawyers avoid the mistake that caused this ruling, and to encourage judges to read briefs with the generosity of spirit that we’d all like to see extended to one another; and b) that while I disagree with the way that this ruling shook out, that what’s done is done.

With all of that said, let’s talk about the case. Richardson v. Audobon Insurance Company, 948 So. 2d 445, available from Google Scholar here (but if you’re a Mississippi Bar member, your Casemaker member benefit will pull it up), was a case alleging “payment of insurance proceeds to [an] Estate rather than to [the plaintiff].” Richardson, 948 So.2d at 446. The circuit court granted summary judgment to all defendants on the grounds that the complaint was barred by collateral estoppel and granted a motion for Litigation Accountability Act sanctions against the plaintiff. Id. at 448-49. The Court of Appeals affirmed and denied rehearing.

Here’s the important part for the Court of Appeals: the plaintiff asserted on appeal that the sanctions award was erroneous because the insurer had a “valid contractual obligation to its insured, i.e., Richardson.” Richardson, 948 So.2d at 450. It then goes on to say:

Interestingly, in his brief to this court, Richardson admits that his complaint was filed in bad faith, stating that “[a]rmed with the convictions of one individual, a valid contract, lack of any evidence of assent by the individual to actions adverse to his interest, and the truth, the bad faith complaint was filed against Audubon and Hamilton to right a wrong that had transpired.”

Id. The Court of Appeals then confirmed itself, saying that the circuit court said, at the summary judgment hearing, that a party aggrieved by a prior ruling (such as they found this plaintiff to be) “appeal[s] the Chancellor’s ruling to the Supreme Court.” Id. at 451. It was not appropriate, the circuit court ruled, to “institute a bad faith lawsuit against the insurance company and the estate.” Id.

Now, it seems to my relatively inexperienced eyes that the plaintiff was using “bad faith” as a term of art to describe the claim. What’s more, that seems to be a pretty straightforward reading of the language that both the circuit court judge and the plaintiff used. In fact, it seems pretty tortured to assume that a plaintiff would ever admit, in an appellate brief, that the complaint they sought reinstated for trial was filed in bad faith. In short, I’m left wondering, why would the Court of Appeals decide that that was the best possible reading of the plaintiff’s brief, even if they concluded that the circuit judge meant to characterize the complaint as filed in bad faith?

I don’t have an answer to that question, and speculation seems disrespectful. But the next question is, “How can I, as an attorney, avoid this sort of interpretation of my language?” And the answer seems to be, “Assume the court is hostile.” None of us want to think like the deck is stacked against us; but if we do, we will be more likely to bring our A-game – which can’t help but be better for our clients.

If the appellant’s attorney had assumed that the Court in Richardson would be looking for a reason to affirm, they might have phrased that particular passage of their brief differently. Even something as simple as referring to it as a “bad-faith complaint” might have reassured the Court that the phrase described the cause of action rather than the act of filing it. Or it could have been phrased as “the complaint alleging bad faith” or some other verbal or adjectival phrase that would separate the plaintiff’s action in filing the complaint from the alleged acts of the defendant. The result might have been saving the client four thousand dollars in sanctions, and the cost of appealing that ruling.

6 thoughts on “Drafting Tip: Assume The Court Is Hostile

  1. Wow. What an asinine misreading. Here’s the 1st sentence of a COA op by the now-Chief Judge of that court: “Pursuant to a bad faith complaint filed by James McKneely against Liberty Mutual Insurance Company, the trial judge sitting without a jury, entered a final judgment in favor of McKneely in the total sum of $ 150,000 in compensatory damages and $ 200,000 in punitive damages.” No hyphen. (Rev’d on cert, but not on grounds relating to the lack of a hyphen.) So sorry that happened, Jane. But never chalk up to malice what can be adequately explained by stupidity.

  2. I was busy summarizing the Court of Appeals opinions. Tellus Operating left me in a coma since I know bupkis (thank you, The Dick Van Dyke, show for teaching me that word) about oil and gas. .

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