Tuesday, November 26, 2013

Ten Commandments of Legal Writing

In preparing for the upcoming semester, I’ve developed my Ten Commandments of Legal Writing.  I’ll be posting my commandments (from ten to one) over the coming weeks, starting today!

#10—Thou shall* follow all local rules regarding page limitations, formatting, and font.

While this isn’t solely a “legal writing” rule, I think it is important enough to include in my Ten Commandments.  Every jurisdiction has local rules that govern the filing of documents.  Often, these local rules set forth page limitations and font size and style requirements.  The local rules frequently outline formatting requirements—such as the size of margins and whether footnotes may be single-spaced.  You should always follow these rules.  Many appellate courts, including the Circuit Appellate Courts, are extremely particular about the format of documents filed.  I once had an appellate court (temporarily) refuse to accept my record excerpts because I had failed to include a blank cardstock page on the back of each volume of the excerpts.  If that court noticed my failure to attach the cardstock, you can be sure it, and similar courts, notice other non-compliances.    

And never, never attempt to evade page limitations by shrinking font size, fiddling with margin size, or placing substantive arguments in footnotes.  Courts will see right through these tricks.  You aren’t fooling anyone—just ask the lawyer in Abner v. Scott Memorial Hosp., 634 F.3d 962 (7th Cir. 2011) (appellate brief struck where brief exceed page length and word limitation and attorney falsely certified that brief complied with local rules). 

Think twice before you ask permission to file a brief or document that exceeds the page limitations in the local rules.  Even if the court grants your request, it likely will do so begrudgingly and against its better judgment.  In most cases, “a modicum of informed editorial revision” could easily reduce the brief to the page limit without changing the substance. See Belli v. Hedden Enters., Inc., No. 8:12-cv-1001-T-23MAP, 2012 WL 3255086, at *1 (M.D. Fla. Aug. 7, 2012); see also Brian Garner Interview with Honorable Bruce D. Willis: On Page Limits, available at http://www.lawprose.org (last visited Nov. 25, 2013).

In his The Winning Brief, Brian Garner notes that Charles Alan Wright successfully opposed a petition for certiorari to the United States Supreme Court in a mere six pages. It took Wright only six pages of straightforward, to-the-point sentences to convince the highest court in this country that a circuit court’s decision was correct and did not warrant review. If Wright could accomplish that in a mere six pages, the rest of us can learn to keep our briefs brief too.  Request a page extension only when absolutely necessary. 

Does all this really matter, you ask.  Aren’t cases won on facts and law, not Times New Roman 14-point font and 1½ inch top margins?  As a law clerk, I can tell you that following the local rules does matter.  Judges and justices are less likely to respect the substantive points made by attorneys whose briefs don’t comply with the local rules. Why? Because failure to comply with the local rules means one of two things: either the attorney couldn’t be bothered to read the local rules or—worse—the attorney read them but didn’t care enough to comply with them. How can the judge trust the substantive work of someone who is either that lazy or that careless?  Local rules exist for a reason.  Even if you don’t understand that reason, comply with the local rules anyway.

* I understand Bryan Garner would be displeased with my use of “shall,” a directive that has its own set of problems.  See Bryan A. Garner, The Redbook: A Manual On Legal Style § 24.3(a) (2d ed. 2006).  Since this is a list of ten commandments, not a contract or statute, I’ll take the risk.  

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