Posted by Eugene Volokh:
Satire in the "Questions Presented" Section of Appellate Briefs
http://volokh.com/archives/archive_2009_08_09-2009_08_15.shtml#1250121795
is probably best avoided. From Newman v. Commowealth, 2009 WL 2431289
(Va. Ct. App. Aug. 11):
[One of appellant's "questions presented" was:]
4. Is it a violation of the Establishment Clause of the First
Amendment to the Constitution of the United States when the
manufacturer of the equipment used to test breath in driving under
the influence cases refuses to divulge to any state or Federal
agency, to any court, to any defendant, to any prosecutor or to any
trier of fact the information programmed into the equipment and
which controls the operation of and the results obtained from the
equipment[?] Is it a further violation of law that the Commonwealth
requires the courts, the prosecution, the defense and the triers of
fact to take on faith alone that the information programmed into
these machines is correct?
[Footnote:] At oral argument, appellant's counsel informed the
Court that appellant's "question presented" concerning the
Establishment Clause of the First Amendment to the United States
Constitution was "satirical" in nature. Rule 3.1 of the Rules of
Professional Conduct states, "A lawyer shall not bring or defend a
proceeding, or assert or controvert an issue therein, unless there
is a basis for doing so that is not frivolous, which includes a
good faith argument for an extension, modification or reversal of
existing law."
My guess is that the "satirical" question did not improve the
appellant's chances.
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