Responses to court proceedings: “Bad Attitude Costs Texas in Fee Dispute”

While there are drily funny aspects to this story as told by Lowering the Bar − and who among us northeasterners doesn’t want to guffaw viciously when Texas makes a mess for itself − there are also a few general lessons in it for the rest of us, about how not to respond in court proceedings.

For Texas, the proceeding involved a dispute over legal fees:

Hey, I get it—sometimes when you win and you think the other side’s position was bogus, it’s hard not to get all smug and self-righteous.

But you really should try.

Not trying very hard—well, not trying at all—cost the State of Texas a lot of money on June 18, when a judge awarded other parties in a voting-rights case $1,096,770 in legal fees and costs, even though Texas had a decent argument that it was the prevailing party and so it should get paid. (McClatchy DC; thanks, Mark.)

Now the thing is, this case involved the Voting Rights Act, and as many of us are miserably aware, the Supreme Court gave Texas the win here. But:

Okay, so who “prevailed” in that mess? The Democratic groups said they did, because Texas lost the first ruling and changed its plans, just like they wanted it to, and they filed motions seeking over $1 million in fees. Texas did not agree.

It did not agree so much, in fact, that it didn’t even bother to file responses. Or, rather, it did file something but it couldn’t bring itself to call the document a “response.” It filed this three-page thing it called an “Advisory,” saying that not only did Shelby County mean Texas won, it meant Texas had essentially always been right because the law was unconstitutional all along (an “affront” and a “nullity”), and the case never should have been brought. That’s wrong for a couple of reasons, I think, but Texas was so sure of itself that it didn’t bother to say much of anything else.

As the judge’s decision made clear, this was a Bad Idea.

In fact, she said, it presented “a case study in how not to respond to a motion for attorney fees and costs.” While Texas might have lost anyway, to be honest, the attitude didn’t help it, and at a minimum it waived any argument that the amount of fees claimed was unreasonable because it said nothing about that at all.

I think this lesson applies in many more legal circumstances than a motion for attorney fees and costs. What I extract from this case is when a party in a case files a response to any sort of motion made by the other party, the response should be legitimate, factual, respectful of the court and not derisive, thinly reasoned and without presenting any evidence to support its contentions.

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