A Polite Fiction

Recently, I was listening to oral argument and was struck by one advocate’s repeated reference to opposing counsel as “my friend.” The phrase struck me as odd because, to my knowledge, the lawyers were not friends outside of the courtroom. And they were certainly not friends inside the courtroom; they were adversaries litigating a disputed matter. So I wondered why the advocate chose that phrase.

As it turns out, referring to other attorneys as “my friend” is a phrase originating across the pond.  The expression is a remnant of English legal practice and its division of practitioners as either barristers or solicitors.[i]  Barristers, being the higher branch of the profession, always referred to one another as “my learned friend,” while solicitors, occupying the lower branch of the profession, “never presume[d] to make use of the word ‘learned’ in referring to each other, ‘my friend’ being the nearest approximation to the language of the bar permissible to them.”[ii]

The distinction made some sense in that setting. English legal culture was organized around formal differences between barristers and solicitors, marked by distinctions in dress, status, training, and even vocabulary.[iii] “My learned friend” and “my friend” were not merely terms of courtesy. They were markers of professional rank.

But transplanted into modern American practice, the phrase feels out of place. Just as we signaled our independence by abandoning English courtroom customs such as powdered wigs, hereditary judges, and forms of address like “Your Lordship,” perhaps, on America’s 250th birthday, we should finally retire “my friend” as well.

Part of the problem is its inherent falsity within the confines of the courtroom. Opposing counsel is not my friend in our endeavor, nor am I opposing counsel’s friend. We may be cordial, respectful, and professional. We may even be actual friends outside the courtroom. But when standing at the lectern, we occupy adverse positions. Referring to one another as “friends” asks everyone in the room to participate in a polite fiction that carries as much sincerity as Regina George complimenting another girl’s outfit.[iv]

And the sometimes-used iteration, “my friend on the other side,” is worse still. To modern ears, it sounds less like a form of professional courtesy than a theatrical flourish. It is difficult to hear the phrase without thinking of Dr. Facilier, the voodoo-practicing witch doctor from Disney’s The Princess and the Frog, and his “friends on the other side”—shadow demons who carry out his villainous schemes.[v] Whatever image an advocate hopes to project, that is probably not it.

The phrase becomes even stranger when viewed in light of its history. “My friend” was the lesser form of professional courtesy because the recipient was not considered “learned.” Detached from that historical context, “my friend” retains the formality while losing the meaning. What remains is a phrase that sounds simultaneously archaic and insincere.

The inherent lack of sincerity became evident in United States v. Acevedo-Ramos, 842 F.2d 5 (1st Cir. 1988), where the defense attorney’s reference to the prosecutor during closing argument as “my friend” prompted an immediate objection from the prosecutor, stating, “Not my friend,” followed by a heated exchange between the attorneys.[vi] The exchange later became part of the defendant’s appeal, where he argued that the interruption deprived him of a fair trial. The First Circuit rejected the claim, but the incident illustrates how the phrase can be received. Whatever counsel intended, “my friend” landed not as collegiality but as something sufficiently inaccurate—and sufficiently irritating—to provoke a spontaneous correction in front of the jury.

Professionalism does not require artificiality. American advocates can treat opposing counsel with respect without borrowing courtroom customs that have outlived the institutions that produced them.

There is no shortage of alternatives. Advocates may refer to each other as “opposing counsel,”  “my opponent,” or even counsel’s title and name (e.g., Ms. Woods).  Each of these options are both respectful and accurate. None of those formulations requires the court to indulge the fiction that adversaries are friends, nor do they import the remnants of a professional hierarchy that American lawyers abandoned long ago.

The best oral advocates sound natural. They speak like highly prepared professionals, not like actors reciting lines inherited from another legal culture and another century. “My learned friend” may still have a place in the Inns of Court. “My friend” may survive as a vestige of that tradition. But in an American courtroom, the phrase often draws attention to itself rather than to the argument.

Ultimately, effective advocacy depends on credibility, and credibility depends on authenticity. Opposing counsel can be respected without being recast as a friend, and professionalism can be maintained without clinging to a relic of a centuries-old English hierarchy. If America’s semiquincentennial inspires us to retire one inherited courtroom custom, “my friend” would be a good place to start.

[i] Lawyers and Law Practice in England and the United States Compared, 9 Green Bag 223, 223 (1897).

[ii] Id. at 224.

[iii] Id.; see also Geoffrey May and Basil H. Pollitt, English Legal Practice:  Its Applicability to America, 27 Kentucky L. J.169, 171 (1939).

[iv] Mean Girls, Paramount Studios (2004).

[v] https://youtu.be/k7Il8L0O1AQ?si=hhHUfbFlI34uxPxX (excerpt from the movie The Princess and The Frog, Disney (2009)).

[vi] United States v. Acevedo-Ramos, 842 F.2d 5, 7 (1st Cir. 1988).