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January 01, 2016

Opening Statement: Seven Tips for Writing Briefs and Motions

Practical advice from a veteran litigator.

Steven A. Weiss

Writing briefs and motions takes a lot of practice and a lot of thought. Every motion and brief should fit into the grand scheme of the case, and every motion and brief should be used as an opportunity to tell your story and educate the judge on the facts and the law. Not using briefs as part of your strategy is a wasted opportunity.

Remember that judges are human. Their attention span is not any longer than ours. When they start reading a brief, they read as little or as much as they want, and one of the determinants of how much they read is how well written the brief is. If the brief is confusing and disjointed, or filled with typos and difficult to understand, the judge may not read from start to finish. On the other hand, if the brief is well written, tells a story, and keeps the judge interested, he or she is much more likely to read the entire brief.

Here are a few simple tips that will make your brief writing better and more persuasive. Although everyone has their own style of writing, some basic rules apply regardless of style.

1. Spelling counts.

It’s 11:30 p.m. and your court, which requires electronic filing, only recognizes pleadings filed by midnight. You have been through 14 drafts of the brief. Should you go through it one more time to check for typos that might have slipped in during the last changes? Yes, you should. Typos are bad. They are sloppy. As you have probably been told over and over again, if the judge sees that you were sloppy in proofreading the brief, why should he or she think you were any more careful in your legal research or the manner in which you describe cases? This is a simple rule. Don’t file briefs with typos. That being said, it is going to happen. The next question is what do you do when you find, after the fact, that a brief was filed with typos? The answer is it depends. If there are several typos, talk to the clerk about submitting a substitute brief. This may require a motion. If there is only one typo, use your best judgment as to the judge involved and the circumstances of the filing. A judge will generally be more tolerant of typos if the brief is on a temporary restraining order. One more thing on typos. Because of spell-check, most typos these days are homophones. “To” instead of “too” or “two.” “Their” instead of “there.” Someone needs to actually proofread the document, rather than simply relying on spell-check. Grammar-check may catch some of these, but generally it does not catch them all. There is no substitute for proofreading.

2. Know the difference between “that” and “which.”

I never learned when to use “that” and when to use “which.” Is it “these are the documents that plaintiff withheld” or “these are the documents which plaintiff withheld”? I don’t know. Someone once told me that you should always use “that,” unless it sounds absolutely wrong. That’s the advice that (or is it “which”?) I always follow.

3. Make your opening paragraph count.

All too often, I see a brief, or a draft of a brief, that starts with “Defendant X (hereafter ‘X’), in accordance with Federal Rule of Civil Procedure 12, hereby moves to dismiss Count IV of the complaint filed by Plaintiff Y (hereafter ‘Y’). In support hereof, X states as follows. . . .” This kind of an opening paragraph is pretty worthless. It doesn’t tell the judge anything (particularly since the title of the brief is usually something like “Defendant X’s Memorandum in Support of Rule 12 Motion to Dismiss Count IV”). The opening of a brief should either tell the judge what the case is about or tell the judge why the motion should be granted or denied. If it is early in the case and the judge does not know much about the allegations, the brief might start with something like “This case is about. . . .” If the case has been pending for a while, the brief should start with something that tells the judge why the motion should be granted or denied. For example, “Defendant’s motion for summary judgment on Count IV should be granted because discovery has shown that there is absolutely no evidence that Defendant did. . . .” The opening of the brief is frequently the first thing the judge reads (the accompanying motion is often ignored). Make it count.

4. Your response brief does not have to follow your opponent’s organization.

The defendant files a motion to dismiss the complaint. It raises three arguments why the complaint is defective. Usually, a party puts its best argument first. Presumably, there is some tactical reason for the order in which it presents its arguments. Your response does not have to follow the same order. It does not have to treat each of the opposing party’s arguments as a separate issue. While I do not recommend ignoring any of the main arguments raised by the other side, your brief can often be written almost independently. If you are responding to a motion to dismiss, your job is to establish why the complaint states a valid claim. You can write it that way. “Count I is for tortious interference with contract. To state a claim, plaintiff must allege the following elements. . . . Plaintiff has done so.” It is usually good to start with an argument on which you are confident of victory. By starting with an argument that you are pretty sure will win, you create a little momentum and earn some credibility with the judge.

5. Whenever possible, cite cases that are actual precedent.

This should be a no-brainer, but I see it violated all the time. If your case is pending in the U.S. District Court for the Northern District of Illinois, you should try to cite federal cases in this order: Cite U.S. Supreme Court cases, if applicable. If not, cite cases from the Seventh Circuit Court of Appeals. Decisions by the U.S. Supreme Court and your circuit, if applicable, are binding on your judge. Next, cite cases from the district court in which your case is pending. The first choice is decisions by the judge before whom the case is pending. The second choice is decisions from other judges in the same district. You may need some local knowledge about the judges. Some are routinely reversed or otherwise not highly regarded among their peers. Try to cite cases by the judges within the district who are generally most highly regarded. Decisions from other districts are not binding (nor are decisions from district court judges in your own district). They should be used only if you have nothing better, and then usually just to show a reasoned opinion. The same rules apply at the state level. In federal court, if arguing issues of state law, apply the same rules as if you were in state court.

6. Everything should be in final form.

Early in my career, I submitted a 25-page draft appellate brief to a senior partner. He returned it to me with four words: “Go ahead and file.” I rewrote it several times before I filed it. But it made me realize that there is no reason why I shouldn’t have done those rewrites before I gave it to the partner the first time. Most of the time, someone is going to edit your work. Sometimes the edits will be voluminous. That is not an excuse for submitting drafts that are not what you think is the best work product you can provide. Just because you think someone else will edit it anyway does not mean that you can submit something unfinished. The only exception is if it is discussed in advance and the person you are submitting it to specifically requests a rough draft first.

7. Pay attention to your writing style.

There is an article entitled “How to Write: A Memorandum from a Curmudgeon,” written by Mark Herrmann. 24 Litig. (Fall 1997), at 3. It is an amusing memorandum on how a lawyer should write. I highly recommend it. It provides many practical tips on writing briefs and can significantly improve your writing skills. Mark Herrmann also wrote a book entitled The Curmudgeon’s Guide to Practicing Law, which can be purchased from the ABA Section of Litigation’s website.

Follow these simple rules and I guarantee that your writing will improve.

Steven A. Weiss

The author is senior partner with Honigman Miller Schwartz & Cohn LLP, and chair of the Section of Litigation