Being a trial judge, I often spend Sunday afternoons reading motions and supplemental filings, such as memorandums, for the upcoming court week. Reading a brilliant first sentence in a motion or an exceptional memorandum is uncommon. Instead, most motions I read inspire a desperate need for a nap. But, when those rare, stylistic gems come along, I savor the words, copy them, and make my law clerk reread and appreciate those works of art. Profound motions and memorandums also help me and my law clerk draft an order in the party’s favor. That is how you win an argument.
Each part of a motion is equally important, so do not include superfluous detail. The document title tells me everything I need to know about the motion and who is bringing it. I do not need to know in the first sentence who represents the parties and the procedural history. What I do want to know in the first sentence is what relief you are seeking and why I should grant it. Clarity, above all else, wins an argument.
Do not use legalese. If a word does nothing to advance your argument, strike it. Lead with your strongest argument, concede what you must, and get to the point. Avoid repetition—I reviewed your case in preparation for your hearing, and I do not need to be told everything multiple times. In preparation for hearing your motion, a judge has reviewed applicable law as well, and you do not want to dedicate your limited time with a judge talking about the law instead of arguing your case.
For example, do not waste a judge’s time discussing the standard of review on a summary judgment motion. They know the standard and will skip over that section of your memorandum, meaning they may not read the remainder of the brief. In addition, do not, under any circumstance, attach too many exhibits to your memorandum. Binders of exhibits go unread. I repeat: Binders of exhibits go unread. Every case can be reduced to 10 pivotal documents, so only attach the exhibits that are necessary to win your argument.
Do not ever lie about or misrepresent the facts of the case in your motion or memorandum. Judges understand you are an advocate for your client, but misstating facts guarantees the judge will stop reading your brief. This is where lawyers get into trouble. State only those facts necessary to win your argument and those agreed upon by opposing counsel. If you lie about the facts of your case, a judge will never trust you again and may disregard your future memorandums.
After you have read the cases you cite in full, you can properly apply them to your motion. State case holdings accurately and make sure the case is still good law. I assure you that the judge and their law clerk will have read every case pivotal to your argument. Opposing counsel will have done the same. If, in your preparation, you have found that a case is directly on point, make it an exhibit to your motion. Do not include or discuss cases with wildly different facts to make the case inapplicable.
I love a packed sentence where every word matters. I reread those sentences. Not because I do not understand them but because they say what I need to know in the fewest words. Remember, judges have little time to spend on your motion. The tighter the argument (and the shorter the memorandum), the more likely I will read it in its entirety and be persuaded by your argument. As a bonus, you also sound smart, and I will remember you and your writing.
After you research your motion, draft your argument, and include applicable case law in your memorandum, make sure you have reviewed your writing for common errors. For example, be very careful when you cut and paste. Misstating a party’s name or making a scrivener’s error is sloppy, and it makes a judge wonder what else you missed. These small errors distract the judge and prevent them from appreciating your argument. Therefore, always edit and revise.
After your first round of edits, set the motion aside and take a break before editing and revising again. Finally, ask a smart colleague to read and edit your writing, and you do the same for them. By doing this, you might also pick up some tips from your colleagues that help you in your own practice.
Sometimes, when attorneys get to court for a motion hearing, there may be extraneous matters for the parties to discuss related to the case even before the motion proceeds. Judges can assist with getting the parties to communicate to schedule a continuance or other matter in the case because everyone is together in the same place. Be sure you have a copy of your calendar or bring your phone, if permitted in your jurisdiction’s courthouse, so you can readily access electronic communications, calendars, or other items.
As you prepare for your motion hearing, make sure that you have a binder of all of your important documents for your case. This typically includes the pleadings, key documents like contracts or insurance policies, and your own notes on the case. Having these documents ready allows you to reference dates and timelines, people, or facts that are in dispute to support your motion.
Arguing or being present for a motion hearing is an opportunity to show the judge that you know your case and can answer the judge’s questions. So, ask your partner or senior lawyer to allow you to argue the motion or, at a minimum, accompany them to court.
Judges know when the attorney arguing did not write the motion or memorandum, so being involved in drafting the memorandum and being present in court is an excellent way to advocate for your client. Remember, the best memorandums are the memorandums that make a judge’s job easy. Give a succinct conclusion that effortlessly writes the judge’s order for them. A judge remembers compelling arguments and will include them in their order. By getting to the point, checking your work, and knowing your case and the applicable law, you will write a compelling argument that will keep your judge’s attention and help you win your motion.
