Tuesday, April 29, 2014

More Writing for Judges

I understand readers appreciated my previous tips on writing for judges, so I'm posting some additional points lawyers should keep in mind when writing for judges.

Use pleadings to advance your case not air your grievances. I recently heard a trial judge talk about becoming frustrated with lawyers’ conduct toward each other. She said that in several cases, she has ordered lawyers to refund some of their fees for unnecessarily expanding litigation by fighting with each other—and has ordered those lawyers to send copies of her orders to their clients along with the check. How embarrassing for those lawyers. As I’ve said before, judges are extremely busy, and they quickly become frustrated with lawyers who cannot get along and file unnecessary pleadings because of that disharmony. Before you file a motion based on the opposing party’s or its lawyer’s conduct, think about these questions: What are the chances that motion will actually be granted? What value will the motion add to the client’s case? Is the opposing party’s conduct egregious enough to warrant court action? A judge’s job is to see cases to resolution, and judges generally don’t want to spend time addressing issues that don’t advance the litigation. Think twice before filing these types of pleadings.  

Know the standard and write with it in mind. Whether you’re writing a trial court or appellate brief, you must know the standard and keep it in mind at all times. Let’s consider the summary judgment standard: in order to obtain a grant of summary judgment, there must be no disputed material facts. Arguing that the facts most support your client’s position isn’t going to help—fact finders (not judges) decide factual disputes. One disputed material fact—even if small—means no summary judgment. So if there are disputed facts, you’ve got to argue those facts aren’t “material.” And on appeal, you’re probably not going to get anywhere by arguing the jury’s or judge’s findings of fact are wrong. In most cases, the standard of review for factual findings is “any evidence,” so if there is “any evidence” in the record to support the factual findings, those findings will be upheld. You’re either going to have to argue that there is no evidence to support the fact finder’s decision (a very difficult argument) or argue that the trial court misapplied the law (or misinstructed the jury on the law), which are reviewed under a much less deferential standard. Know the standard and write with that standard in mind.  

Don’t fudge the facts or law—even a little. “[A] lawyer’s credibility often rubs off on client credibility.” Stanley v. Tucker, No. 4:09cv162, 2011 WL 7664585, at *9 (N.D. Fla. Nov. 28, 2011). Lawyers must have a mastery of the facts of their cases and present those facts honestly and forthrightly to the judge. Even though some lawyers may not believe it, judges rely heavily on attorneys to educate them about the facts and the law. And you can be sure that if one party misstates the facts, the other party will correct that misstatement quickly. Cases on appeal are no different. Many appellate judges read the lower court’s opinion first. So if you mischaracterize the facts or the lower court’s findings, you’re digging yourself a hole before you’ve even had a chance to argue your client’s case. Fudging the law creates a “boy who cried wolf” situation. Judges and their clerks check authority. And if a judge believes an attorney is trying to “pull one over” on the judge by citing irrelevant authority or misciting relevant authority, the judge will have a hard time believing anything else the attorney says.   

You aren’t entitled to anything. I recall a case in which both parties moved for summary judgment. The judge denied both motions, and the parties were outraged, arguing that the judge had to grant one or the other. What the parties missed was that neither had proven entitlement to summary judgment. Neither had shown that the material facts were undisputed. Neither had sufficiently argued that its position was the only one supported by applicable law. So the judge denied both. Getting a case resolved through motions practice isn’t a right. You’re responsible for showing the judge why you’re entitled to what you want.

Draft a reply brief only if you need one. In an interview recorded in the Scribes Journal of Legal Writing, Judge Frank Easterbrook noted: reply briefs “aren’t really reply briefs most of the time; they’re just repeat briefs.” A reply brief shouldn’t be a regurgitation of the arguments in the initial brief. A reply brief should address arguments made by the opposing party in its response brief if those arguments weren’t addressed in the initial brief. If you knew what the opposing party would argue in its response and addressed those arguments in your initial brief, you likely don’t need a reply brief. If you do need to file a reply brief, keep it short and to the point. You can reference arguments made in your initial brief, but limit the substance of your reply brief to previously unaddressed issues and arguments.

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