“As our court has previously explained,” the Sixth Circuit wrote on July 23, “there are good reasons not to disparage your opponent, especially in court filings.” I too have explained this, repeatedly. See, e.g., “Perhaps Some of the Language ‘Crossed the Line’ of Civility” (Dec. 9, 2019). But no matter how many times I and/or the Sixth Circuit make this point, lawyers continue to do it.
A further point is that if, for whatever reason, you want to maximize the notoriety you gain for doing this, you should try to be creative. This won’t increase your chance of winning, but then if you had any chance of winning to start with, you probably wouldn’t be wasting words disparaging your opponent. In Bearden v. Ballad Health, the plaintiffs’ counsel was quite creative. The problem, the court held, was that “counsel’s colorful insults do nothing to show that his clients have standing to bring this lawsuit.” Case dismissed.
The facts of the case are interesting, if the phrase “allegedly created an interlocking directorate in violation of the Clayton Antitrust Act” is the kind of thing that interests you. The short version is that the plaintiffs were unhappy with two healthcare companies that had merged, and with associated individuals, who the plaintiffs alleged were all part of a conspiracy to … well, do something not to plaintiffs’ liking. That was the problem: the district court dismissed because it found the plaintiffs hadn’t explained how they were harmed by the alleged acts. This was a problem because, in general, you aren’t allowed to sue unless you’ve been harmed somehow, shocking as that may seem. The court gave the plaintiffs another chance, but the amended complaint was no better (despite being four times as long). Plaintiffs still had not explained how they personally had been (or soon would be) harmed by the merger they were complaining about.
Plaintiffs did make clear that they thought it was bad, though. How bad? Well, the plaintiffs alleged:
- That one of the merged companies “surrendered to [the other] much in the manner Marshal Petain surrendered France to Adolph Hitler”;
- That the merger was an “Octopus which was birthed by [two individuals] on one of the local golf courses while [they] were walking down the ‘green fairways of indifference’ to the health, safety and welfare of millions of people”;
- That the companies were “intertwined in an incestuous relationship, the likes of which have not been seen since the days of Sodom and Gomorrah”;
- That the Tennessee Department of Health’s failure to supervise the defendants was “akin to the Tennessee Bureau of Investigation allowing criminals to rape, murder, pillage, loot and plunder on its watch, while its agents stand by”;
- And—working in a reference to current events—that “a virus has been effectively introduced into the Ballad Board which has sickened all 11 directors, and which requires their permanent quarantine.”
So, pretty bad? The “octopus” reference wasn’t new, the Sixth Circuit pointed out. Plaintiffs had used it in an earlier brief, along with other unflattering (and mixed) animal metaphors:
- The merged entity was an “Octopus … created from the petri dish of a few so-called economic and business ‘leaders’ in its market area”;
- The Octopus “now attempts to slink back into its hidey hole by firing its putrid pool of purple ink into the faces of these plaintiffs, who dare challenge its hegemony”; and
- Plaintiffs “wonder[ed]” whether the main culprit would strike again, suggesting it was “affixing its buzzard-like grin” upon the region, “ready to ravenously pounce upon the medical facilities in these areas like the buzzard swoops down upon the carcass of a dead cow.”
- Plaintiffs also compared one of the individual defendants to Porky Pig, saying they both stuttered.
Now, there is a glimmer of creativity here, or at least I like the phrase “the green fairways of indifference.” And metaphors have their place, but they only work if you use a light touch, which pretty much rules out metaphors involving Sodom, Gomorrah, or Adolf Hitler. The overblown language in a couple of these (“putrid pool of purple ink”) reminds me just a little of the Indian Supreme Court’s work, though in reality it bears only the faintest resemblance to the galactically florid eructations of that most inscrutable entity. See “Luxuriate in the Octopoid Embrace of These Legal Postulations” (Feb. 15, 2017). Also, the Indian Supreme Court wasn’t insulting anybody, so it’s not very similar, I suppose, apart from the octopus reference.
In any event, as the Sixth Circuit pointed out, none of the rhetoric got the plaintiffs any closer to actually explaining how they’d been harmed, if they had. Presumably they were concerned about potential price increases, or maybe reduced access to healthcare, but they couldn’t explain it in any detail. And, as this case shows, even the most colorful insults can’t make up for a lack of substance.
Well, it might work in politics, but it won’t get you far in court.