by Bryan J. Pattison
“What kind of lawyer are you?” The answer, of course, is easy: “I’m a litigator,” you respond. As you bask in the glow of that term and envision yourself in the courtroom shredding a witness on cross, you get the follow up question: “So what do you spend most of your time doing?” You think back to the past week. Then the week before that. The picture of the cross-examination fades. Time to come clean. “Writing,” you answer.
A litigator is a lot of things, chief among them a professional writer. But unlike other professional writers, “litigators” typically don’t view themselves as professional writers. This makes no sense. As legal writing guru Bryan Garner puts it, “There are only two things lawyers get paid for: writing persuasively and speaking persuasively.” Bryan A. Garner, Garner on Language and Writing 20 (2009). While both are essential, it may not matter how dazzling you are at trial, if you can’t write well enough to avoid summary judgment, you may never get there. And even if you win at trial, the victory may be short-lived if you can’t write an effective appellate brief to keep the judgment intact. Yes, I’m painting with broad brush strokes here, but you get the point. Persuasive writing is essential.
When you think about it, legal writing is relatively simple. The goal is well-defined and the audience clear. But for whatever reason, every day across this state, lawyers stuff courthouses with briefs and memoranda that miss the mark. This article is intended to bring a renewed focus on the importance of legal writing. To help with this task I enlisted the assistance of some of the “Deciders,” who were more than willing to offer tips, suggestions, and words of advice on what lawyers can do to improve the persuasive quality of their writing.
The Mindset of a Writer
A common complaint from judges is a general one: The quality of legal writing is just not very good. All too often it’s rambling, disjointed, stream of consciousness nonsense. For example, when asked what things bog a judge down and what is the quickest way to lose your judge’s attention, Judge Wallace A. Lee of the Sixth District Court offered a single answer: “Long, run-on sentences and paragraphs.”
In my view, the best explanation for what causes this type of writing is from writing professor John Trimble. He characterizes it as “unconscious” writing: “The unconscious writer is like a person who turns his chair away from his listener, mumbles at length to the wall, and then heads for home without a backward glance.” John R. Trimble, Writing with Style 5 (2d ed. 2000). The unconscious writer forgets that someone else will be trying to make sense of what he or she is writing. See id. at 4. But as Trimble explains, writing, at its core, “is one person earnestly attempting to communicate with another. Implicitly, then, it involves the reader as much as the writer, since the success of the communication depends solely on how the reader receives it.” Id. at 5. The successful writer – the professional – is fully aware of and writes with the reader in mind.
What were you thinking about the last time you wrote a brief or trial court memorandum? Sticking it to opposing counsel? Sticking it to the trial judge who botched your case? Impressing your client with your mastery of legalese? Or perhaps just getting something on paper and filed before the 5:00 p.m. deadline? If so, hit reset. Because the success of your writing depends solely on how the judge receives it, the starting point to persuasive legal writing is to write with your judicial reader in mind.
Use a Scalpel, Not a Shotgun
With your judicial reader in focus, you can now deliver what he or she wants. What is that? Here are a few things:
Judge Derek P. Pullan of the Fourth District Court:
Persuasive writing is concise and focused. Delete anything that distracts from the argument. This takes time and discipline. Many over-length memoranda could be reduced to ten pages of argument without compromising content or persuasion.
Finally, the content – not the length – of string cites persuades. A parenthetical summary of the rule for which each case is cited is like a gift. Better than a string cite, choose the two or three cases most closely aligned with the facts of your client’s case. Describe the facts and legal reasoning of the court. Then explain why these cases are controlling or should be followed as persuasive authority.
Judge Kate A. Toomey of the Third District Court:
Substance matters most, of course, but looks count for something. Avoid crowding and clutter, use an easily read typeface and font size, and spend some time making sure that the margins are where they belong for both headings and text. Use periods and paragraphs. Don’t overdo it with capital letters, underlining, and boldface: it wears me out, and I have to suppress the feeling that the writer is using emphasis in an effort to overcome lack of substantive merit. Likewise, avoid plowing ground you’ve already plowed. Sometimes a point bears repeating, but the editor in me can’t resist observing that pages could be reduced to paragraphs if only the drafter would take a little more care, and the resulting brevity serves in subtle ways to make the memorandum more appealing to read.
U.S. Magistrate Judge David Nuffer suggests that you do the following before you file your brief: “Have a person unfamiliar with your case read your written work. If they don’t get it, a judge won’t either.” In addition, “Always read your writing out loud. This reveals difficult constructions.” In other words, don’t use your decider as a guinea pig for your writing.
Finally, because you are asking a judge to spend the time to read your submission carefully (split infinitive), the least you can do is proof the thing before you file it. U.S. Magistrate Judge Paul M. Warner cautions: “Ensure that your memoranda and briefs are free of errors. Typos and citation mistakes reflect poorly on your credibility and attention to detail.”
The Fifth Floor
Perhaps in no other court is your writing more outcome determinative than when you are filing something on Matheson’s Fifth Floor – home to the Utah Supreme Court and Utah Court of Appeals. At that point, the record is what it is. The testimony is etched in stone. Your only chance is to write your way out of it.
But before you start hammering away on your appellate brief, take a step back and think not only about what your argument is, but how you want to present it to the court. Judge J. Frederic Voros, Jr. of the Utah Court of Appeals sets the frame: “The advocate sees the appeal as a contest to be won; the judge sees it as a problem to be solved. Consequently, to win the contest, the advocate must show the judge how to solve the problem.”
With that in mind, the rest should be easy. But if you spend any time reading the opinions of our appellate courts you would think there is a shortage of rule books. All too often those opinions contain cautionary tales of what happens when the briefing requirements of the Utah Rules of Appellate Procedure are ignored. Learn from those opinions. Don’t draft a brief that gives an appellate judge a hankering to make you famous.
In this regard, no Rule of Appellate Procedure allows, implies, or remotely suggests that appellate briefing is nothing more than taking whatever you filed in the trial court, re-packaging it with a fancy blue or red cover, and filing it with the appellate court in the hopes of a better (blue) or the same (red) result. Rather, the Rules of Appellate Procedure give you an “opportunity” to do so much more. Judge Gregory K. Orme of the Utah Court of Appeals:
Two opportunities are often missed in briefing. I think it’s because they are left to the end, and counsel are at that point so anxious to get the darn thing filed that these two items get short shrift if they get any “shrift” at all.
The first is the OPPORTUNITY to include an addendum, which does not count against the page limit! I frequently marvel at how many lawyers pass up the opportunity to include key documents – the pivotal insurance policy, the challenged jury instructions, the lease at the center of the dispute – at the back of their briefs. It is apparently thought unnecessary because these items are included in the record on appeal. Here’s the reality check: I don’t read briefs while sitting in the Records Room in the appellate clerk’s office. It’s stuffy in there, and there aren’t any chairs. Just box after box after box of records. I usually read briefs at home. Sometimes at a local restaurant; sometimes on an airplane; sometimes sitting by a campfire. I appreciate the practitioners who make my job easier by including legible copies of the important documents right in the brief, so I have ready access to them while reading the arguments involving these very documents.
The second is the OPPORTUNITY to sell me on an argument before I even read the argument. Rule 24 calls for each brief to include a summary of the arguments. Many practitioners view this as a throw-away, and include just enough verbiage under the Summary of Argument heading so they can consider the requirement satisfied. Our best practitioners realize this is an important opportunity to “pre-sell” their argument. A well done summary will pique my interest, or provide me a road map of where the ensuing detailed arguments will take me, or suggest a reason for skepticism in considering the other side’s position even before I pick up that brief. Think of the Summary of Argument as an executive summary introducing a long business report. Pretend that the reader won’t read any more than the Summary. That’s not the case, of course, but if you approach it from that vantage point, you will write that key section of the brief in a manner commensurate with its importance.
On the Clock
Judges are human. I know this because I spotted one at Wal-Mart once. They have lives outside the courtroom and their time, like yours, is valuable. As such, deliver the information, deliver it quick, and make it enjoyable (or, at the very least, painless) to read.
U.S. District Judge Dale A. Kimball states it simply: “Get to the point. Be as concise as possible.” Judge Warner echoes that view: “Most judges have heavy dockets. Time is a precious commodity for the courts. Therefore, remember no judge appreciates verbosity. Question every word you put in your brief or memorandum.”
In fact, according to Bryan Garner, “Every brief should make its primary point within 90 seconds.” Bryan A. Garner, The Winning Brief 55 (2d ed. 2004). This means that within ninety seconds “the judge understands the basic question, the answer, and the reasons for that answer.” Id. With this in mind, have you ever stood up in court to deliver an argument only to have the judge say, “No need, counsel, you had me at ‘Comes Now.’” I doubt it. So why start each brief with “COMES NOW, by and through, yada yada yada”? All it amounts to is a repeat of information already contained in your case caption. As such, I suspect that most judges have developed a habit of skipping forward in search of something that matters – so much for being concise and getting to the point. Here’s an idea, throw caution to the wind and replace this archaic opener with something meaningful. Of the judges I polled, none were against a short introduction (emphasis on short) or opening summary; rather, they would welcome it.
Five Things to Never Do
Here are five things to never do, courtesy of U.S. District Judge Ted Stewart:
1. Overstate your own case (either the law or the facts).
2. Misrepresent your opponent’s case.
3. Personalize the case or demonize your opponent.
4. Suggest that a contrary ruling (either past or future) from a judge was due to his/her prejudice against you.
5. Develop a reputation as a “churner” – an attorney who files unjustified motions for ulterior motives: for example, to wear down an opponent, to over-stretch the opponent’s resources, to look good to a client, or to keep the judge from focusing on what really matters.
Your Reputation Precedes You
Judge Stewart’s last point shows that your reputation and credibility can be as important as the content of your written submission. A charlatan with a golden pen is still a charlatan. Thus, don’t do anything to undermine your credibility. According to Judge Lee, the quickest way to lose your credibility is to “cite a case that is no longer valid or doesn’t stand for the proposition cited.” These comments are echoed by other judges. Judge Warner says, “Make sure the cases you cite really stand for the proposition cited. Also ensure that any cases you have cited have not been recently overruled.” These things seem obvious and fundamental. But if the Deciders believe it necessary to point them out, it’s safe to assume there are violators out there among us.
For the rest of us, a stellar reputation is not a license to have the court accept something as fact or law merely because you said so. Judge Voros: “Do not expect the reader to take your word for anything. Support assertions of fact with citations to the record; support assertions of law with citations to authority.”
Do Your Talking on the Field
Let’s take a quick detour to the greatest place on earth – the football field. Now, which type of player do you prefer: The trash talker or the player that lets his play do the talking for him? I suspect your answer is the latter. You want the player that lets his performance speak for itself. You want the guy who drags three tacklers to get an extra yard; not the guy mouthing off the night before. You want the player that does his talking on the field.
Persuasive legal writing is no different. Let your play – your analysis and mastery of the facts and law – do the talking. Your decider will appreciate it.
Hyperbole, personal attacks, and overstatement do nothing to advance the argument. They literally stop the judicial reader in his tracks. More important, a resort to these methods suggests weakness on the merits. If opposing counsel’s argument is “specious,” “absurd,” “unhelpful,” “simple-minded,” or “outrageous,” then sound legal analysis will eliminate any need to label it so.
Avoid overstatement of assumed motives and characterizations of tactics: “[Party] began its attacks against [Opposing Attorney] by sending him a personal subpoena during the holidays on December 29, 2008 in an attempt…to ruin [Attorney’s] holidays.” “[Party] engaged in Gestapo tactics in serving [Opposing Attorney] with the [other] subpoena in his law office.…”
Be temperate in your writing. Judges are not persuaded by the use of inflammatory language or rhetorical questions. Nor are they persuaded by the overuse of bold type, italics, underlining, exclamation points, etc. Resist the temptation to use any of these techniques. They do nothing but harm your credibility and the merit of your arguments.
A Motley Assortment of Things
Judge Kimball recommends that you actually respond to your opponent’s arguments and resist throwing in the kitchen sink:
• “Lawyers should address all of the arguments of their opponents. It is puzzling when this is not done.”
• “Try to avoid advancing unpersuasive arguments. Those types of arguments detract from good arguments.”
Judge Nuffer suggests a few things to avoid (in case you’re skimming, the examples he provides are of what not to do):
• Avoid bizarre figures of speech:
Even if it is necessary to reschedule the trial date, it is difficult to see how this is unfair to the defendant. ‘Unfairness’ is often tossed out as a reason for the court to do, or not do, something. Like the cry of the loon, it is haunting, but often without substance.
• Avoid unintelligible titles:
Corrigendum to Declaration of [Name] and Memorandum of Points and Authorities Submitted in Support of Plaintiffs’ Opposition to Defendant [Name] Motion to Amend Scheduling Order and Request for Scheduling Conference.
. . . and a few things to do:
• Use Tables of Contents. It is a road map to your story.
• Take a Bryan Garner seminar and/or use his books.
Seek to improve. Whether you write with the eloquence of Justice Robert Jackson or like a kid holding a Crayola (or somewhere in between), you can and should seek to improve your legal writing. Following these tips and suggestions is a start. But don’t stop there. Follow Judge Nuffer’s suggestion and pick up an actual book on legal writing. After all, you are a professional.