Tuesday, March 25, 2014

Writing for Judges

NOTE: This post is adapted from my article, Writing for Judges, which first appeared in the Fall 2013 edition of the Federal Bar Association's Litigation Section Newsletter, SideBar.

Judges complain that practitioners don’t know how to craft concise, well-written briefs. Lucky for us, many things that irritate judges about the briefs they see are pretty easy to fix. The tips below are generally universal, but always defer to the first tip. If the local rules set strict guidelines for briefs and filings, follows those rules.

Follow the Local Rules
Few things annoy judges more than practitioners who fail to comply with local rules, such as rules setting margins, outlining font style and size, and establishing page limitations. Judges 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? We tend to forget the rules are there for a reason. Even if you don’t understand the reasons behind the local rules, comply with them anyway.

Use Introductions and Conclusions

Judges often complain that writers launch into their arguments or fact statements without giving the reader any context. Judges love short introductions that tell them the type of case and the issues, summarize the party’s position, and state the relief the party is seeking. A powerful opening sentence that concisely sets forth your strongest argument can set the tone for a persuasive, winning brief. If the brief or filing is lengthy, use a table of contents to set the roadmap. Judges appreciate informative conclusions as well. Use a short conclusion to summarize your client’s position and briefly remind the court of the authority you’ve cited to support that position and the reasons it should grant your motion. Keep introductions and conclusions short—I recommend no more than a double-spaced page for each.

Briefs are So Named for a Reason
Don’t feel compelled to fill every line of your 25 page (or 30 page or 50 page) limit. One of the most apt quotes I’ve encountered about legal writing says it all: lawyers suffer from an inability to say what is necessary and then to stop. Judges are busy—they appreciate brevity. I’m not suggesting you should sacrifice important points for the sake of keeping it short, but exercise discretion in choosing your issues—unless absolutely necessary, a brief or motion should probably be limited to 3 issues or fewer. Good points get lost in lengthy, verbose briefs, and untenable arguments dilute the strength of good ones. Fancy or esoteric words, unnecessary Latin phrases, and overly long sentences do nothing but lengthen your brief and distract the judge from the merits of your argument. And don’t belabor your points. Repeating the same position 15 times in a brief does not make the brief 15 times more persuasive. It just ticks the judge off and detracts from your credibility.

Organize Your Arguments in a Meaningful Way
Judges also complain about unorganized briefs. Use headings and subheadings to organize your points and thoughts. Even general headings such as Factual Background, Citation to Authority, Analysis, and Conclusion will help guide the reader. In considering the issues, judges often refer back to specific parts of the parties’ briefs—make it easy for the judge to find your arguments. A short recitation of pertinent facts is usually the best place to start (unless the court is so familiar with the facts that it is unnecessary to repeat them). Follow the factual background with an outline of the relevant authority and an analysis of the issues in light of the authority (including any counter-analysis to your opponent’s position on the issues).
Unless there is a good reason to do otherwise, you should start with your strongest argument. That said, if there are threshold, dispositive, or uncontested issues, don’t forget to address those first. For example, are you arguing a personal jurisdiction issue based solely on specific personal jurisdiction? Admit up front that the court lacks general jurisdiction—don’t make the court go through a general jurisdiction analysis only to learn you aren’t arguing it has general jurisdiction over the non-resident defendant. That would be frustrating to anyone and is especially frustrating to time-pressed judges. Also, don’t be afraid to make strategic concessions in your argument—they enhance your credibility as an advocate and give you the opportunity to show why unfavorable facts or law do not undermine your position. Judges strive to make fair decisions that are consistent with the governing law. Don’t make it difficult for them by making meritless arguments–or worse—frivolous ones.

Perform a Legal Analysis
You are responsible for convincing the judge your position is sound. You can’t just cite cases and expect the judge to do your analysis for you. Many judges say lawyers are good at citing relevant authorities but bad at analyzing their own cases in light of those authorities. Often, a lawyer’s analysis is simply a summary of the facts in a conclusory manner. This won’t cut it. The analysis should answer one question: Why should your client win in light of the facts and law? I try to make sure my analysis comprises 15-20% of any brief I write (e.g. 2-3 pages of a 15-page brief). I’ve found any less analysis generally isn’t enough—I haven’t done a complete analysis. And any more is too much, where I’m doing nothing more than beating the proverbial dead horse. And remember—never “fudge” the facts or law in your analysis or elsewhere in your filings. By doing so, you risk irreparable damage to your credibility and, as a result, your client’s case. Expect the judge to check your authority for accuracy.

Grammar and Style Do Matter
The goal of every brief should be to make it as easy as possible for the court to grant your motion. Judges have a hard time reading and understanding briefs replete with grammatical and other errors.You should know some core writing and grammar rules.If you don’t, invest in a short, helpful writing guide, such as Plain English for Lawyers or The Elements of Style.

Small Things that Are Really Big Things
Always remember that you are judged on your brief from the minute the judge picks it up. Judges have an easier time focusing on the substance of briefs that are well-formatted and professional. Don’t forget to:
• Number the pages of your brief.
• Spellcheck your documents.
Make sure your citations are correct so the court can locate the authorities you cite. If you rely on foreign or hard-to-find authorities, attach copies to your brief.
• Format your documents in a way that is aesthetically pleasing—choose appropriate fonts and margins and ensure the font style and size is consistent throughout.
• Avoid long paragraphs—particularly those occupying an entire page—and do not overuse block quotations or emphasis, or punctuate sentences with anything other than a period (unless you are citing from the record).

These are just a few suggestions to improve your written advocacy skills. I can’t promise you’ll win every motion if you follow these tips; however, I can promise the clarity and effectiveness of your motions and briefs will improve. And judges will appreciate that.

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