Tuesday, September 29, 2015

The Seven Words You Can't Say in Court? (Bad Language)

When I still practiced law, I represented insurers in coverage and bad faith actions. I had a serious case in which the insured refused to cooperate with the insurer. And when I say refused, I mean flat-out refused. He was ultimately compelled to give a deposition, and he was not happy about. At one point he yelled at me to “hurry up with this shit” and at another told me to “stop asking dumb fucking questions.”

Did I include those quotes in my motion for summary judgment asking the court to relieve the insurer of its duty to defend for failure to cooperate? You bet I did. Why? Because they told the story of the insured’s refusal much better than I ever could.

Whether it’s contained in an email, captured in a surreptitious recording, or part of live testimony, many cases involve bad language in one way or another. Judges have heard most anything and everything you can imagine, but some lawyers still seem hesitant to use bad language, even in cases where the specific language used may make or break the case (e.g. Title VII claims).

Here’s my rule about using “dirty words”: If the language speaks to an element of a claim or crime, I include it without modification (usually with some notice that the language is offensive). If the language is just superfluous, I leave it out.  

I don’t use grawlixes or obscenicons, the symbols some people use in place of bad language (e.g. a**hole), because they don’t have the same connotation that seeing the exact language in print does.

Plenty of opinions contain bad language for the same reason, though some judges refuse to include it, reasoning that “quoting vulgar language [does not] contribute[ ] to the development of [bodies] of law.” Carr v. Allison Gas Turbine Div., General Motors Corp., 32 F.3d 1007, 1015 (7th Cir. 1994) (Coffey, J., dissenting).

What do you think? Is bad language acceptable when it serves to further a case? Or should lawyers and judges sanitize those seven “dirty words?”

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