Commercial Litigation and Arbitration

Ad Hominem Attacks on Opposing Counsel Subject to Inherent Power Sanctions

Mayes v. Kollman, 2014 U.S. App. LEXIS 6055 (5th Cir April 1, 2014):

Third, Appellants argue that counsel for Appellees prejudicially described Appellants' attorney during closing argument as an attorney who is "always advertising" and telling his clients that a vehicular collision is "cash time." Indeed, it is highly inappropriate for  [*12] a lawyer to make personal attacks on opposing counsel during any stage of litigation.12 Whether or not Appellants' attorney chooses to advertise to promote his practice is obviously irrelevant to Appellees' possible liability for the injuries that Appellants suffered during the collision. Remarks such as those made by Appellees' counsel certainly have the potential to be prejudicial or inflammatory. However, as this court held in United States v. Hernandez-Guevara, 162 F.3d 863, 874 (5th Cir. 1998), we owe "some deference to the district court's determination regarding the prejudicial or inflammatory nature" of comments that attorneys make during closing argument. Having considered each of the very brief comments made by Appellees' counsel during closing argument in light of the entire trial record, we do not find that these remarks rose to the level of harmful error in the present case.

12.   See United States v. Young, 470 U.S. 1, 9 (1985) (observing that "inflammatory attacks on the opposing advocate" have "no place in the administration of justice and should neither be permitted nor rewarded; a trial judge should deal promptly with any breach [of this rule] by either counsel"); Ransmeier v. Mariani, 718 F.3d 64, 68 (2d Cir. 2013)  [*13] (describing "ad hominem attacks on opposing counsel" as "offensive" and as a potential basis for sanctions); Thomas v. Tenneco Packaging Co., Inc., 293 F.3d 1306, 1308 (11th Cir. 2002) (per curiam) ("We conclude that an attorney who submits . . . ad hominem attacks directed at opposing counsel is subject to sanction under the court's inherent power to oversee attorneys practicing before it.").

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