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.
