Sometimes in the heat of battle, litigators can lose perspective. That seems to have been the court’s impression in TK-7 v. Estate of Barbouti, 993 F.2d 722 (10th Cir. 1993), an apparently hard-fought civil conspiracy case. The defendants prevailed, but the district court declined to award them their court costs, ordering instead that each side bear its own costs. Why? It seems that the paper war got out of hand, so the district court decreed a pox on both sides’ houses:
The Court feels compelled to note that as was the case prior to trial, there has been, after trial, an inundation of a steady stream of motions seeking some form of relief ... [a total of twenty post trial motions and responses]. Virtually any relief, fee, or sanction that could be requested has been, and a response or objection to it has been filed. The sheer volume of the pleading in this case is evidence of the hostility between these parties. [footnote omitted] The hostility is so great that the Court believes it is clouding counsels’ judgment and good sense. Discretion and reason would seem to call for tempering the tone of the requests, if not their number. The attitude of counsel has “fomented litigation” and protracted this case. All counsel are equally guilty of this conduct, and none stands before the Court with clean hands.
Id. at 735–36 (bracketed material by Court of Appeals). Evidently the volume and tone of the paper filed in this case made an impression, but it wasn’t the desired impression.
So next time you find yourself driven to file, say, an emergency opposition to your opponent’s motion for leave file a surreply, stop. Take a deep breath. Count to ten. And think about whether reflexively firing back may do your client more harm than good.