Primacy: Just Say It
Let’s say you do not want a new judge. How do you approach a judge who might be skeptical? Do not hide the ball. Come right out and tell the judge what you want, why you want it, and why the judge should deviate from typical practice.
We sit up and listen to counsel who begin with “Your honor, we know this court has a long-standing practice of allocating deductions. We are asking for a change. We know the court will listen and consider our position. This case is different for these reasons . . .” We admire frankness. Don’t bury this in the middle of your opening statement.
Do the same in your written work. I cannot count the number of times that a motion for summary judgment crossed my desk that began with “This is a motion for summary judgment on behalf of Defendant XYZ which should be granted because there are no issues of material fact, which is the standard the court is to apply under the cases of . . . [string cite from the turn of the century forward].”
I know it’s a motion for summary judgment. I’ve read the title. I know who is bringing the motion. I know the standard. The first paragraph is a waste of time for you to write—and a waste of time for me to read. Capture my attention. Differentiate your motion from the others sitting on my desk. Give me a motion I want to read.
Kick Footnotes and String Cites to the Back
This is a slightly altered anecdote from an appellate court judge. In his view, footnotes were like the experience of having your popcorn popped, your favorite beverage in hand, and climbing a long spiral staircase to sit down in your favorite chair to watch a favorite movie or sporting match—only to hear the doorbell ring. If the information in the footnote is important, it needs to be in the main body of the brief. If not, make it an endnote instead.
Unnecessary footnoting and endless string citations are layers of insulation burying your important points. Put the string cites in the appendix. You want the skeptical judge to concentrate on why an exception should be made in your case. Separate the wheat from the chaff for your judge.
Write the Opinion
This is a great gift for judges. Just attach it to your brief or hand it up to the court and give the other side a copy. Also, send it in a format that the judge can modify. Put in findings of facts, the law supporting the decision, and the relief you are requesting. You may be surprised. The judge may just sign it.
I can think of two times an appellate court commended my decision at the trial level. In both cases I did something different than the usual rote paragraph-after-paragraph recitation of facts followed by cases followed by reasoning. I used the Pareto Principle: 20 percent (or less) of my opinion revealed the basis for 80 percent of my ruling.
The first involved a litigant who tried to hide an asset. In my order, I made a timeline. I outlined the date with each and every omission of the truth or commission of a lie. The entire opinion was 12 pages. The timeline was one page. The appellate court set forth the complete timeline in its opinion.
The second was an asbestos case. I made a chart comparing the facts of the controlling case next to my case on one axis. On the other axis were the four factors that the controlling case told me I should apply. The entire opinion was 16 pages. The chart was a third of a page.
In both cases, the reader could simply look at the timeline or the chart and know quickly what the case was about and the reasoning for my decision.
Think of different ways to get the most information to your judge, in the most compelling way, using the fewest words. Think timelines, think charts, think visuals. Think different—then do it.