A good appellate advocate knows that understatement is generally more effective than exaggeration or hyperbole. This proved true in a recent appeal before the United States Court of Appeals for the Sixth Circuit. In this case, State Farm argued that the plaintiff was not an "occupant" of its insured's vehicle when she was struck as a pedestrian and landed on the hood, where she sustained further injuries. The district court entered judgment for State Farm, but the Sixth Circuit reversed. In a brief, three-page opinion, Circuit Judge Kethledge stated,
There are good reasons not to call an opponent's argument "ridiculous," which is what State Farm calls Barbara Bennett's principal argument here. The reasons include civility; the near-certainty that overstatement will only push the reader away (especially when, as here, the hyperbole begins on page one of the brief); and that, even where the record supports an extreme modifier, "the better practice is usually to lay out the facts and let the court reach its own conclusions." ... But here the biggest reason is more simple: the argument that State Farm derides as ridiculous is instead correct.When selecting appellate counsel, consider inquiring about his or her style of advocacy or even asking to review sample briefs. Exaggeration can annoy the court and negatively impact your case.
Read the entire Sixth Circuit opinion here.