December 2018 | Around the ABA

Judge: 13 musts for your briefs and motions

Maybe you’ve investigated whether or not the judge in your case prefers the Oxford comma. That’s fine, but Ross Guberman, president of Legal Writing Pro and the author of “Point Made: How to Write Like the Nation’s Top Advocates,” thinks your time would be better spent “developing the core persuasive writing skills that would make almost all judges much happier.”

Guberman surveyed more than 1,000 state and federal trial and appellate judges about what they want to read in briefs and motions and wrote about it in “Judges Speaking Softly: What They Long for When They Read” in the Summer 2018 issue of Litigation Journal.

He found that they agreed on most things, but writes, “The bad news: Other than the briefs by the brightest lights of the appellate bar, almost every filing I see violates the wish lists of the judges I surveyed.”

So, here’s how to remedy those violations, according to Guberman:

  1. Do a name check. The judges prefer words to acronyms, and one wrote, “I absolutely detest party labels (plaintiff, debtor, creditor, etc.). Name names, for God’s sake!” Another like to see names so as not to forget who’s who.
  2. Stay classy. The judges agreed briefs should show, not tell. “Avoid phrases and sentences that reflect a lack of civility. Don’t belittle the other side’s arguments but rather focus on your own strengths,” wrote one judge. Another warned that “words such as ‘clearly,’ ‘plainly,’ ‘obviously,’ ‘absurd,’… are crutches intended to prop up weak arguments that lack logical force.”
  3. “Slash windups and throat clearing.” The judges do not look fondly on long introductions, and words that “waste space” such as, “it should be noted that…” and “it is beyond doubt that….”
  4. Use graphics effectively. Timelines, maps, graphs, diagrams, tables, headings and generous margins all got a thumbs-up from the judges on the basis of clarity and as a counterweight to “dry legal analysis.”
  5. Avoid clunky legalese. The judges agreed phrases such as “for the foregoing reasons…,” “heretofore,” “aforesaid” and “to wit” “should go the way of the dodo bird.”
  6. Don’t be cloying. As much as phrases such as “defendant respectfully submits” sound respectful, the judges would rather just see “defendant contends.”
  7. Assume the judge understands the finer points of usage and write accordingly. The judges unloaded on their pet peeves, including using “impact” as a verb, improper use of “that” and “which” and misuse of the subjunctive.
  8. Don’t gum up the works with needless dates. Only include specific dates that are relevant. Otherwise, you can note the passage of time with “the next week” or “two months later.”
  9. Explain why you should win in the introduction. The judges want to read a first page that says something like “The Court should deny Defendant’s Motion for Summary Judgment for the following three reasons.”
  10. Don’t go overboard on citing cases. As one judge wrote, “Cite just enough cases and not all cases. One controlling case is enough.”
  11. Once you cite the case, be succinct. One exasperated judge opined, “Skip the long description. Just state the damn proposition, cite the damn case and be done with it.”
  12. Use block quotes as little as possible. It turns out judges glaze over them, so Guberman advises only using block quotes “when the language of the text itself adds value.”
  13. Put citations in the text, not in the footnotes. Judges are reading your work on an iPad, and most would rather not scroll to the end to read a footnote. “This is a show-your-work gig, and I need to see your work there – not go hunting for it,” one wrote.

Summing up, Guberman advises lawyers to “shoot for strong, compelling, yet concise introductions; a restrained use of case law; and modern diction.”

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