My husband and I frequently argue about who is funnier, and about what makes something really funny, and about whose turn it is to put away the folded laundry. In short, we argue a bit. But rarely about anything truly important. When it comes to the big things, our perceptions nicely align.
Most days, our arguments are invigorating. In fact, I once suggested that we could achieve fame and fortune by co-authoring a self-help book called Bickering Your Way To Greater Intimacy.
The idea was not a serious one. (And I have already admitted that he and I frequently refuse to be serious at every opportunity.) Even so, in tossing out that idea, I was guilty of some loose language. “Bickering” is never a good idea. And bickering is not really what my husband and I enjoy doing. Bickering is the dark side of the pleasurable stuff, more aptly termed “banter.”
Shakespeare was aware of the critical distinction between bickering and bantering. And I think it’s a distinction that lawyers should try to appreciate.
As a class, “lawyers” include lots of people who went to law school thinking that their affection for starting arguments would serve them well in the profession. But after some years butting up against lawyers of various stripes, I would say that the very best are those who generally resist turning up the heat, who never pound on their chests, and who avoid getting visibly ruffled when the other guy does so. In other words, I haven’t seen evidence that the inclination to pick fights is a particularly helpful part of an advocate’s toolkit.
Law practice does, of course, involve plenty of “argumentation.” Lawyers argue by building cogent positions to be presented to decision-makers (clients, judges, negotiating partners, or opponents); these arguments are supposed to be based on relevant factual evidence and reliable legal authorities. Lawyers also argue with other lawyers about the correct or permissible way to do something in the service of their clients as they work to build or present the first kind of arguments. When lawyers opt for bickering as a means to pursue either type of argument, the process can start to resemble medieval dentistry.
To better understand the bickering v. bantering distinction, think about how it feels to witness couples in the throes of a real argument. It does not matter how much you like the couple or if you have reason to believe that one member of a couple has a righteous cause. Watching intimates hack away at each other is unappetizing. Bickering, even absent real violence, can become the stuff of horror movies. For example:
George: Stop it, Martha.
Martha: The hell I will! You see, George didn’t have much . . . push . . . he wasn’t particularly . . . aggressive. In fact he was sort of a . . . FLOP! A great . . . big . . . fat . . . FLOP!
George: (smashes bottle) I said stop, Martha.
Martha: I hope that was an empty bottle, George! You can’t afford to waste good liquor. Not on your salary, not on an Associate Professor’s salary!
(George drops the broken bottle on the floor.)
Martha: Not on an Associate Professor’s salary. (to the guests) I mean, he’d be . . . no good . . . at trustees’ dinners, fund raising. He didn’t have any . . . personality, you know what I mean? Which was disappointing to Daddy, as you can imagine. So, here I am, stuck with this flop . . . .
Edward Albee, Who’s Afraid of Virginia Woolf? (c. 1962).
Bickering assaults the senses. By contrast, banter can be quite entertaining. The difference is principally one of tone. Bickering is caustic, grating, acerbic: dark, bitter coffee. Banter is chirpy, frothy, effervescent: crisp, sparkling wine. Both have an edge. But banter remains on the playful side of combat. Banter recognizes the darkness, but responds by letting in light. To wit:
Beatrice: I wonder that you will still be talking, Signior Benedick: nobody marks you.
Benedick: What, my dear Lady Disdain! are you yet living?
Beatrice: Is it possible disdain should die while she hath such meet food to feed it as Signior Benedick? Courtesy itself must convert to disdain, if you come in her presence.
Benedick: Then is courtesy a turncoat. But it is certain I am loved of all ladies, only you excepted: and I would I could find in my heart that I had not a hard heart; for, truly, I love none.
Beatrice: A dear happiness to women: they would else have been troubled with a pernicious suitor. I thank God and my cold blood, I am of your humour for that: I had rather hear my dog bark at a crow than a man swear he loves me.
Benedick: God keep your ladyship still in that mind! so some gentleman or other shall ’scape a predestinate scratched face.
Beatrice: Scratching could not make it worse, an ’twere such a face as yours were.
Shakespeare, Much Ado About Nothing (I.1.116–37).
This classy banter leaves the audience eager for the next volley, not longing for intermission. Lawyers might want to keep this in mind before running to the courthouse to file a motion to compel discovery or a motion to quash a deposition or a motion for sanctions; maybe it is best to first try to assault difficult opposing counsel with a charm offensive or at least a verbal dance, Beatrice-and-Benedick style. If that’s not possible, when taking the fight to the court, lawyers should at least try to infuse their writing on the subject with some light—a sense of humor and a sense of proportion—instead of dark sniping.
This same objective should apply when writing briefs asking a court to undo the work of another. Whether asking a district court judge to reverse a magistrate judge’s decision or an appellate court to reverse a trial court, a lawyer is, after all, trying to convince the reader that another jurist—a colleague—committed a significant error of some kind. If, in the process, that lawyer assaults the integrity or judgment of other judges or lawyers in a strident tone, the lawyer only hurts the client’s cause. The audience will recoil. Or worse, like the hapless bystanders who are forced to watch George and Martha go at each other in Who’s Afraid of Virginia Woolf?, the audience may want to flee the scene in search of the “euphemism.”
 At the end of Act I, the fight between George and Martha is interrupted when their young female guest, Honey, abruptly runs toward the hall, where George has previously indicated they “keep the euphemism.” As Honey exits she exclaims: “I’m going to be sick . . . I’m going to vomit.”