So you are in court or maybe on a conference with a judge and you make a factual statement about the other side. Maybe it is about some less than stellar conduct of the other party. Maybe it is about a violation of an Order. Maybe it is about the failure to provide discovery. Could be anything. And rather than opposing counsel specifically responding to the statement, either by way or explanation, excuse or admission, you get the complete non-sequitur accusing your client of doing something completely unrelated.
That my friend, is “Whataboutism” and while prevalent in politics, I have seen it more and more in the law over the last few years. Whataboutism has been defined by the Oxford Dictionary as follows: the technique or practice of responding to an accusation or difficult question by making a counteraccusation or raising a different issue.
Now, to me, this is different by the common, but lame, explanation “my client is complying with this part of the order because your client isn’t complying with that part of the order.” This is lame because there is no justification for this in the law – most famously exemplified in the family law context by the maxim that just because someone isn’t paying their child support doesn’t mean that you are permitted to withhold parenting time.
What I am talking about is the complete evasion of the statement/accusation by responding with a different accusation. It happened to me today when I stated that documents that we had been seeking for 6 months or more was met with (1) we are waiting for documents from you and (2) but you just served a subpoena to get the documents. See there was no response as to why the documents hadn’t been produced. But as to (1) that wasn’t entirely true either because there were letters documenting the willingness to exchange the documents pretty much on any day. As to (2), the serving of the subpoenas doesn’t obviate the obligation to turn over the documents. What is worse, rather than doing the proposed exchange, in response to our subpoenas, the other side wasted money issuing subpoenas for the documents we were ready to exchange, just to not turn over their client’s documents. It’s was silly and costly and happens all of the time. Lawyers shouldn’t do it and neither should litigants.
What to do – be prepared to answer the question and at the same time, be prepared to bring up what the other side is deficient in – not necessarily as a tit for tat thing, but rather, to try to move the case forward when you have access to the court. And if you are the one making the original allegation/accusation/statement, be prepared with the facts to address why the red herrings are simply that, red herrings or disingenuous. Moreover, do whatever you can so that the judge doesn’t let the other side off the hook. Respond to the accusation but ask the judge to require a response from the other side.
There is a difference between zealous advocacy and obfuscation or wasting time. The system is strained enough without having to waste time on this type of nonsense.
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