March 06, 2012 Articles

The Hutz Brief: How to Respond to Bad Briefs

Win over the judge with restraint, not ridicule.

By Jeff Berger

The other side’s brief arrives. A quick glance at the first few pages hints at the serious briefing defects that lie ahead. There is no table of contents. There is no table of authorities. There are, in fact, no authorities. Or, there are authorities, but they are statutes from other jurisdictions and century-old precedents that are outdated, overruled, and completely irrelevant. The disjointed prose and indecipherable legal argument are accompanied by inapt Latin phrases decorated with the holy trinity of emphasis—bold, italicized, and underlined. The sentences that are comprehensible are laden with factual fabrications and distortions of the law. Structure, theme, and internal consistency departed early if they ever showed up.   

This unimpressive document is a “Hutz” brief: It is the type of brief that Lionel Hutz, the ne’er-do-well attorney from The Simpsons, would have written had the show’s brain trust ever decided to produce an episode about legal writing. (See, e.g., “Judge: Mr. Hutz   We’ve been in here for four hours. Do you have any evidence at all? ” “Hutz: Well, Your Honor. We’ve plenty of hearsay and conjecture. Those are kinds of evidence.”) Almost every lawyer has come across a Hutz brief at some point. These briefs are produced by litigants appearing pro se, by competent lawyers who are short on time, and by others lawyers who exhibit deficits in the legal writing department.

Such briefs seem like easy targets. In the absence of clear arguments presented to the court, what is the likelihood that the court will find in the party’s favor? The reality, however, is that responding to a poorly written brief can be just as challenging as responding to a well-crafted brief if not more so. As explained below, responding to a Hutz brief is an exercise in reframing, restraint, and clarity.

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