Many lawyers went to law school dreaming of arguing in court—using polished oratory and poise to persuade the judge. But the reality of federal practice these days is that oral argument is rare, and trials are few and far between. Even before the coronavirus pandemic, lawyers lamented the lack of opportunity for oral argument. Because of burgeoning dockets, judges often decide motions solely on the briefing. Here in the Central District, Local Rule 7-15 allows the court to “dispense with oral argument on any motion except where an oral hearing is required by statutes, the [Federal Rules of Civil Procedure,] or these Local Rules.”
Now video and telephonic proceedings have replaced most in-person court appearances, and there is even more emphasis on written briefing. Therefore, accuracy, thoroughness, and persuasiveness in the briefs are more important than ever.
What makes a brief persuasive? Persuasiveness is a function of two elements: structure and content. Structure, or the “architecture” of the brief, is crucial to its persuasiveness. Lawyers sometimes do not spend enough time thinking about how to structure their brief and seem to rush right into argument and case law. This is unwise and, ultimately, unhelpful.
A well-organized brief makes the judge’s job easier. Take time to first outline the argument. Focus on the big picture. What do you want the court to decide and why? What is the analytical pathway to get to that result? Carefully consider which arguments should be primary, which are secondary, and which should be jettisoned altogether. Outlines can go through several drafts, especially for major dispositive motions. This is time well spent. The final version of the outline can become a template for the table of contents. You would not build a house without blueprints. Don’t write your brief without an outline.
Draft from your outline. The table of contents is a key element of the brief that gives the court an overview of your arguments. The order of the arguments signals to the court the relative importance of the issues to the party. Present the strongest arguments first, the weaker ones last. If you think the court may not be able to fully go your way on a particular point, offer an alternative path to resolution that is still consistent with the law but stops short of conceding your opponent’s position.
Making the brief’s structure part of its persuasive thrust also includes paying scrupulous attention to things like page limits, font size, citation format, and thoughtful use of footnotes. Check your local rules, as well as the judge’s standing order, as his or her requirements may differ from the local rules. Make sure you know what, if any, page limits apply to the brief you are filing. Reply briefs are typically limited to fewer pages than opening or opposition briefs. In some districts, when the parties file a motion to compel in the joint stipulation format, they are also permitted by local rule to submit a separate supplemental memorandum before the hearing date. Know the limits and plan accordingly.
Sometimes the complexity of the issues requires briefing that exceeds page limits. If you believe additional pages are needed to fully address the arguments, before the filing deadline, submit a request for leave of court to exceed the page limits and demonstrate good cause why additional pages are needed. Remember, the judge never wants to read more pages than are needed to decide the issue.
You may think that the substance of the brief is more important to persuade the court than attention to these “structural” details. Not so. The structural integrity of your brief, evidenced by fastidious compliance with technical rules, sets a persuasive tone for the court before the judge even reads the arguments on the merits. Failure to comply with the filing requirements annoys the judge at best and, at worst, makes the attorney look sloppy—not a good look for persuading the court.
If you carefully organize the brief, the court can quickly focus on the content of the arguments. Be scrupulous with facts and legal precedent. Accurately summarize the relevant factual record. Include declarations if needed and attach portions of deposition testimony, pleadings, and any disputed discovery requests and responses that are relevant to the motion. Never “shade” or omit relevant facts because they are not “good” for your side of the argument.
If there are bad facts—and there often are—deal with them. Argue why the result should nonetheless be in your client’s favor. Mischaracterizing and omitting key facts are among the fastest ways to undermine the persuasiveness of your brief and your credibility with the court. Dealing skillfully and straightforwardly with bad facts, on the other hand, can bolster your persuasiveness, even if you do not ultimately prevail.
The same is true with legal precedent that cuts against your position. ABA Model Rule of Professional Conduct 3.3(a)(2) provides that “a lawyer shall not knowingly . . . fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.” Do not ignore adverse authority in hopes that your opponent, or the court, will not find it. Persuasiveness is never enhanced by trying to hide from bad authority.
Making your brief persuasive involves not only what you say, but how you say it. Watch your words! Always maintain a professional tone in your brief. When lawyers veer off into insults and accusations about opposing counsel’s purported conduct, it detracts from the brief’s persuasiveness.
Lawyers must be “zealous advocates” on behalf of their clients. Merriam-Webster defines “zealous” as “marked by fervent partisanship for a person, a cause, or an ideal; filled with or characterized by zeal.” But insults, hyperbole, bombast—or, worse yet, ad hominem attacks on opposing counsel—are not zealous advocacy and do not substitute for thoughtful, well-reasoned analysis. Lawyers who engage in character attacks only undermine their legal positions and, in especially egregious situations, risk sanctions. Litigation is often heated. The stakes are high. There are instances where opposing counsel may do things that cross the line. But when arguing to the court, do not cross the line with them.
Stick with a thoughtful discussion of the issues and reasoned application of legal principles. This is the most effective means of persuasion. This will capture the court’s attention. Sniping, insult, and overwrought accusations about the other party’s conduct are neither helpful nor persuasive. Neither are angry statements delivered in ALL CAPS. When I read briefs with this kind of language, it feels like the lawyer is yelling at me!
Good writing is an iterative process. You may want to draft that raging first version of the brief to get it out of your system. But then set it aside. Sleep on it, literally. Rewrite it in the light of a calmer day, with an eye toward what the court wants and needs to hear from you. Now more than ever, the written brief may be your one and only opportunity to persuade the court that your client’s position should prevail. As proclaimed in Hamilton, “Don’t throw away your shot!”
