Judges Speak Behind Closed Doors

By Ross Guberman

If you're a government lawyer who writes briefs all the time, wouldn't you like to climb into the heads of the judges who read your briefs? I've basically done that for you by surveying thousands of judges, ranging from state trial court judges to U.S. Supreme Court justices to learn many of their pet peeves. My questions touched on everything from formatting conventions to word choice, use of case law, treatment of facts, and strategies for persuasion. Their anonymous responses showed surprising candor and consistency.

Some of the results are summarized below. Judges have their quirks, of course, and you should always follow court rules and individual judges' preferences. However, you're sure to make many judges happier if you follow this advice.

Looks Matter: Style Dreams
Ever wonder what the average American judge prefers to look at all day? See below.

1. Use the Oxford comma.
56% prefer the Oxford comma
21% prefer no Oxford comma
23% don't care

2. Put citations in the text, not in footnotes, unless the court suggests otherwise.
78% prefer citations in the text
12% prefer citations in footnotes
10% don't care

Sample comments: "Don't want to have to look down to see citations." "Sometimes they're not on the same screen when you're reading electronically." "Citations in footnotes make you lose your place in the brief." (Note that as a compromise, you could include the caption and the court in the text while relegating the reference matter to the footnotes.)

3. Include two spaces after periods (sorry, one-space fans, but many judges are "traditional").
62% prefer two spaces after a period
21% prefer one space after a period
17% don't care

4. Do what you want with your right margin, though note that typography expert Matt Butterick recommends ragged, which is easier to read.
35% prefer the text to be fully justified
31% prefer a ragged right margin
34% don't care

5. Use italics, not bold, for emphasis, but use emphasis sparingly.
76% say that bold or italics for emphasis is okay (though many stressed that emphasis be used only "occasionally," and many prefer italics to bold)
11% don't want any use of emphasis
13% don't care

Sample comments: "Use emphasis rarely, and use italics, not bold, and never all caps." "Repeated use of emphasis is unprofessional."

6. Write numbers out only once!
73% prefer numbers to be written out just once ("three")
<1% prefer numbers to be expressed with both the word and the numeral ("three (3)")
26% don't care

7. Define terms concisely and rarely, and use words rather than acronyms.
77% prefer the defined term in parentheses ("ABC")
11% say that including "hereinafter defined as" is okay
12% don't care

Sample comments: "If you need to use a defined term, use a word rather than an acronym." "I dislike acronyms unless they're very well known, like IRS." "Avoid defining obvious terms." "Define terms only when there is a possibility of confusion."

8. Use contractions cautiously, if at all, but know that the ground may be shifting.
37% prefer no contractions (judges who dislike contractions REALLY dislike them)
42% say that contractions are okay
21% don't care

Simmer Down: Tone Talk
Many judges called these common attack terms annoying:

  • disingenuous
  • clearly wrong
  • baseless
  • specious
  • without merit
  • frivolous
  • unfortunately for [the other side]
  • sanctionable

Sample comments: "Don't make personal attacks or belittle the other side." "Don't attack the integrity of opposing counsel." "Don't make moral judgments about parties." "Don't use language that is angry or suggests personal dislike of opposing counsel or party."

Less Is More: Words Judges Like to Hate
The 34 other words, phrases, and practices that judges dislike:

  1. Less Is More: Words Judges Like to Hate
  2. The 34 other words, phrases, and practices that judges dislike:
  3. accordingly
  4. aforesaid
  5. appellant / appellee (vs. parties’ names)
  6. arguendo
  7. as follows (“just use the colon: the ‘as follows’ is implied”)
  8. as such
  9. clearly
  10. comes now…
  11. concerning the matter of
  12. each and every
  13. for the sake of argument
  14. foregoing
  15. hereby
  16. hereinafter
  17. heretofore
  18. impact (as a verb)
  19. in view of the fact that
  20. inter alia
  21. it should be noted
  22. Latin in general
  23. notwithstanding
  24. owing to the fact that
  25. prior to
  26. pursuant to
  27. respectfully submits
  28. said (as an adjective)
  29. s/he / (s)he
  30. subsequent to
  31. that being the case
  32. the Court must …
  33. the fact that
  34. the instant case
  35. utilize
  36. wherefore

A few additional examples of judges' preferences that could help your practice: On fact sections: cut dates that don't matter! On using case law: two is often a crowd, and both trial judges and appellate judges bemoan excessive quoting. And on structure: the introduction should list reasons you should obtain the relief you seek.

The survey revealed that many litigators and appellate lawyers do so many things that bug judges - and fail to do so much that could make them happy - that even a small effort to accommodate these preferences can go a long way.

Ross Guberman is the president of Legal Writing Pro. He has conducted thousands of training programs for law firms, judges and courts, and dozens of agencies, corporations, and associations. Guberman is the creator of the new editing tool www.BriefCatch.com and is author of several books, including Point Made: How to Write Like the Nation’s Top Advocates, and Point Taken: How to Write Like the World’s Greatest Judges. He has also coauthored Deal Struck: The World’s Best Drafting Tips with Gary Karl. Guberman holds degrees from Yale, the Sorbonne, and the University of Chicago Law School.