Here is the re-print from the NYLJ/LawCom of Howard Bashman’s article, to which we alluded in an earlier blog:

"Some judges are crooked. Others are idiots. And some ignore or distort the facts and applicable law to reach results more to their liking than the facts and law, honestly portrayed, would allow.

When appealing from a ruling of an incompetent or dishonest trial judge, appellate lawyers often must wrestle with the extent to which the trial judge’s incompetence or dishonesty should be directly condemned in the brief. Similarly, when an appellate court judge believes that colleagues have reached an incorrect result, the appellate judge must decide the extent to which any separate opinion should condemn the other judges’ stupidity or dishonesty.

In my experience, in an appeal that is challenging the substance of a trial judge’s ruling, it is preferable to demonstrate as clearly as possible that the ruling is wrong rather than to try proving that the trial judge was dishonest or incompetent.

As appellate judges are well aware, even the smartest and most highly qualified trial court judges can sometimes reach erroneous results, and thus a direct assault on a trial court judge’s qualifications or motivations is usually, in the appellate court’s eyes, irrelevant to the central issue of whether the decision should be upheld or overturned. Also, an attack on a trial court judge’s integrity runs the serious risk of offending the appellate judges — not typically the best way to convince another person to agree with the position that one is advocating. "