10 DOS AND DON’TS FOR WRITING BRIEFS AND MOTIONS

This month’s Around the ABA summarized an article by Ross Guberman who is the president of Legal Writing Pro and the author of “Point Made: How to Write Like the Nation’s Top Advocates”. After interviewing over 1,000 federal and appellate judges about dos and don'ts for writing motions and briefs, Guberman wrote the article “Judges Speaking Softly: What They Long for When They Read” that was published in the Summer 2018 issue of Litigation Journal.

The following are the dos and don’ts that Guberman settled on after he conducted his survey as summarized in the Around the ABA:

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 likes to see names so as not to forget who’s who.
2. Stay classy. The judges agree 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 get 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. 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.”
9. Be succinct when citing cases. One exasperated judge opined, “Skip the long description. Just state the damn proposition, cite the damn case and be done with it.”
10. 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.