Lawyer Falsify Cases to Support Their Position- a Bad Idea!
There is a very good comment on Max Kennerly’s Blog about the misuse (read “false representation”) of precedence when preparing briefs or arguing a motion or case. This is a much more common problem than it should be. I don’t know if it is because attorneys use old brief and don’t check the cites – so they carry forward errors, or they figure no one is going to check their citations, and listing cases to support your position looks good.
I had a federal case at one time where the opposing party cited a US Supreme Court case to support her position. The problem was that the case supported my position – and I was glad to have the citation – so the opposing motion completely misrepresented the courts decision. Sometimes cases are cited that don’t have anything to do with the issues in the case at hand. The case citation appears to be just filler – and again a false representation to the court.
I now, when there is time and sometimes here is no time, check the citations on major arguments or issues. They are often wrong and I will gladly point this out to the court. I can’t imagine why some attorneys would think that using a false or misleading citation helps their client, but they clearly do or this would not happen.
The other thing I find is that attorneys use the phrase, “ The undisputed facts are…” and then proceed to list allegations or alleged facts that are clearly in dispute. This is another drafting tactic that I find unprofessional and misleading to the court – and I then need to point out to the court that the opposing counsel is misrepresenting the case. The practice of overstatement assumes that the opposing counsel and the court are not smart enough to see what the drafter is doing – and that is a very bad assumption.
