One of the recurring pieces of advice that I heard senior partners give to junior associates in civil firms over the years was that it was worth filing early motions, even if the rigorous standards of review made it unlikely for those early filings to prevail. The advantage, they would explain, was the opportunity to “educate” the judge about the client’s version of the dispute. Of course, the motion had to be colorable and in good faith—it had to have *some* chance of success. But against that low hurdle, the incremental cost of filing a “thirty-percenter” was more than offset by giving the court an early window into what really happened. It was an investment that would pay substantial dividends later, when the court is thinking about the case, perhaps in terms of a discovery dispute or perhaps at summary judgment.
This advice draws from the primacy effect in behavioral psychology—an oft-studied cognitive bias, referring to our collectively hard-wired tendency to better remember information presented first or earlier in a series. It is advice that I received myself as a young associate. I’ve seen it used when explaining litigation costs to a client, both before and after a “thirty-percenter” was denied. I’ve seen it suggested by in-house counsel, when urging outside trial counsel to be proactive early on. I *may* have even passed it along myself, when training younger lawyers somewhere along the way. But, from the vantage point of the bench, I’m here to tell you that it fundamentally misunderstands how judges process information and make decisions.
As a trial judge on a busy court of general jurisdiction in a populous county, I have just shy of 700 cases on my docket in any given month. Roughly half of those cases are felonies on the criminal caseload. The rest are a civil hodgepodge of complex commercial and business disputes, wrongful death actions, professional malpractice suits, foreclosures, personal injury cases, real property fights, product liability class actions, and the like.
Whatever sway the primacy effect holds elsewhere in life, or even in my personal decision-making, those incremental cognitive leanings are utterly swamped at the courthouse by the relentless forward-inching movement of all those cases day after day. I’ve said before that for civil litigators, the law is a series of deadlines. I’ll add now that, for judges, the law is an interminable conveyor belt. When not in trial, every morning is devoted to the vagaries of the criminal docket. And the afternoon is typically given over to civil status conferences, hearings, and drafting opinions. As I move from case to case, topic to topic, I process information by doing a deep dive on whichever narrow question is next squarely in front of me, aiming for a granular understanding of the law, procedural history, and facts apropos just to that specific question. And once analyzed, decided, and memorialized, I move on to the next issue on the next case and start all over again.
For the most part, I’m not in the business of macro-reassessment. Unless expressly invited by the parties or required by the nature of the question at hand, I’m not revisiting earlier decisions or thinking about broader case trajectory when deciding whatever discrete matter is now before me. I don’t independently cross-reference prior allegations or admissions buried in earlier motions practice, unless the parties request it or the issue compels it. Six weeks after writing and releasing an exhaustive 20-page opinion, it is not uncommon for me to have mostly forgotten the questions raised, issues decided, or facts alleged—let alone the identities of parties or which side prevailed. If those outcomes or attributes become important later in the case, I relearn them anew on the next deep dive—but even then only to the extent necessary to understand the material parameters of just that next question.
Moreover, after discussions with colleagues across the state, I’m convinced that this methodology commonly describes how trial judges typically process information and make decisions across the board; in urban courts and rural counties; whether of specialized or general jurisdiction. Simply put, it is wasted effort to use early filings to prospectively “educate” a judge for generalized future advantage. The primacy effect presumes an audience that can actually remember at least one thing from before; but judges lack that bandwidth. We are temporally and perpetually de novo. We learn the thing now, that we need to know now, to make the decision now. And then we move on.
When writing for that kind of audience, the strategic lawyer might better serve their clients by holding their “educational” material in reserve, until they’ve built a methodical record in discovery, and the moment is actually at hand to bring the relevant subset of those facts to bear dispositively on an issue. Anything sooner just gives your opponents extra practice taking potshots at your theory and building a fuller record of their counterarguments—without any corollary benefit to you and your client in terms of future payoff.
All of this presumes, of course, that the judge is the actual audience for your writing. And sometimes that isn’t entirely or exclusively the case. By filing colorable “thirty-percenters,” lawyers are sometimes also sending messages about their resolve, tenacity, intransigence, or resources to opposing parties, future mediators, their own clients, and the like. While that isn’t necessarily inappropriate per se, it should prompt a careful gut check. Anytime a lawyer files a legal writing for a principal purpose other than convincing the reviewing court to grant the relief colorably sought, they should spend a minute with Rule 3.1 of the Model Rules of Professional Conduct. In relevant part, that rule directs that a lawyer “shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.” The associated commentary adds cautions about the lawyer’s “duty not to abuse legal procedure,” and helps define the boundary separating good faith from frivolous conduct. But it’s easy to lose your bearings when filing papers predominantly for ulterior purposes, rather than to convince the court. When you aren’t really trying or expecting to win in that moment, it’s easy to lose sight of whether your filing is really a “thirty-percenter” after all. “Intransigent resolve” and “frivolous” sometimes look a lot alike.
Assuming your motion is both aimed at the court and ripe for persuasion, however, you can reap real advantage by structuring your writing to match the court’s methodology for processing information and reaching decisions. A short, carefully built introduction can be a powerful tool to orient a temporally de novo judge, both briefly as to the nature of the case, followed at more length by the specific, detailed listing of just those facts and legal principles immediately in play. Consider using headers and transitional sentences thereafter that track each section of that introductory outline and reinforce that framing.
Recognizing the court’s interminable conveyor belt, get to your points quickly, clearly, and efficiently. Skip the “party-of-the-first-part, heretofore referred to as” style of obtuse legal writing. Cite to the material parts of the record, without assuming the court will recall any part of it from earlier briefs. Because the court will nevertheless do a granular deep dive, ultimately reviewing whatever primary sources you describe or characterize, consider using pithy block quotes from the actual record or controlling case law as your best instruments of persuasion.
Knowing how judges process information will empower you to give them just what they need, when they need it, to decide in your favor—without investing in a lot of additional and superfluous “education” on the front end that only gets lost along the way.
