Three Things You’re Doing to Hurt Your Writing

As a law clerk I read dozens of motions, briefs, and legal memoranda on a daily basis and constantly see the same errors. I don’t mean errors in reasoning or using passive voice. I’m talking about things that lawyers do regularly which make their writing less persuasive, and thus less effective. Marie Buckley tackled some of these same issues in her great guide to legal writing. But are you making these same mistakes?

Using a Weak Opening Argument

The law is full of difficult burdens for litigants to overcome. Judges know this, and there is no need to remind them. But most importantly, don’t remind them at the top of your argument/analysis section.

At least once a week I read a brief where the attorney explains in the opening of his argument section how difficult a standard is to overcome. For example, here is a paraphrased example of what I see quite regularly:

A defendant has the “heavy burden” of meeting all three prongs of the Pierce test to allege ineffective assistance of counsel. Failure to prove any prong will result in the claim being denied. For that reason, the majority of claims of ineffective assistance of counsel fail. It is the rare defendant who is able to meet all three prongs, including the prejudice prong. This is such a case.

As you can see in the example, the attorney doesn’t say anything in favor of his client until the last sentence. The attorney made it crystal clear that he is fighting an uphill battle to win the case. He may as well have written “this is a really tough case and most people lose but I hope that my client is the one in a hundred that wins.”

Even when your client has the burden of proof, you don’t need to cower in front of the burden. As Buckley explains in her book, “your opening paragraph or opening sentence should lead from the top by stating your conclusion about that topic.”

Misusing Caselaw

Citing Old Cases

Nothing says “I’m copying and pasting this brief” like two pages of caselaw from 1989. The law is constantly changing. If the only cases you cite are from thirty years ago, it’s clear you didn’t do your work and research the current state of the law. That hurts your reputation.

When addressing some issues there may not be any new cases in the area. In that situation, just say so. Introduce the most recent case by stating “in the most recent case on the subject” or something similar.

Cherry Picking Quotes

There may be a sentence or two in a case that says exactly what you want to say. That’s great. Put it in your brief. But if you’re citing it as controlling law, you better explain where it came from. A few sentences can go a long way to help your credibility with the reader. Even a few words can make a huge difference. For example, instead of simply quoting a federal case in state court in a way that makes it sound controlling, use a brief introduction like “as the persuasive case of Tsakalakis v. Glover explains, Plaintiffs should win.”

Once you’ve told the reader what kind of case you’re using, spend at least a sentence or two dealing with the facts. Buckley succinctly explains: never discuss a significant case without explaining its facts. This includes harmful facts to your side. A judge may not read the cases you cite, but when she does, and there are clearly distinguishable facts, you’ve done your client a disservice by not addressing those facts.

Using String Citations

This may be a purely personal gripe, and readers may disagree, but I loathe the use of string citations. When I see a string citation I assume that the first case you cited isn’t as strong as you made it out to be. Either that, or you’re not confident it will carry the day. What other reason could there be to cite ten or twelve cases on the same issue?

Not Proofreading

I know, this is nothing new. But if I didn’t read at least one motion a week with a typo, the wrong name, the wrong case number, or some other simple error, I wouldn’t mention it. Unfortunately, I do.

(photo: Shutterstock)

Subscribe

Get Lawyerist in Your Inbox, Daily

Current Articles
Current Lab Discussions
  • Guest

    Great post Josh.
    Your clerkship seems to have given you a lot of experience in research and writing.
    I’m sure it will be very useful in your new practice; especially if you later expand practice areas.
    Good luck!

  • Roger J. Salmon

    I completely disagree with your comment on string cites. In my experience, string cites can greatly influence a judge. I’ve seen numerous occasions where judges are put at ease by a string cite, as they realize “hmm, so this proposition wasn’t just put forth by some off-the-reservation judge with [insert less desired political persuasion here] political leanings.” Instead, with string cites, I’ve seen judges think “so, a couple other “off-the-reservation judges” agree with these comments, there must be some merit to this holding/dicta/proposition.”

    Obviously, this isn’t true with the rare full page string cites that I have seen in the past. But your article seems to falsely suggest that even a three case string cite is ALWAYS bad.

  • Good article, but I do have to agree with Roger about string cites being useful at times. Sometimes it is important to establish that a legal rule is very well established. For example, I recall an appellate brief I did where the opposing party was trying to assert a legal principle on a critical issue that was simply wrong. It was beneficial to be able to quote from several cases that said his position was wrong, followed by a “see also” batch of string cites. However, I agree that the overuse of string cites would be tedious, so it is a practice that should be used sparingly.

  • Ella

    “A few sentence can go a long way to help your credibility with the reader.”

    In an article in which you rail against the occasional typo, it helps not to have any blatant errors of your own.

    • Good catch Ella! Just goes to show how important proofreading is, and why I shouldn’t do it past 11pm. Fixed.

  • Amusing incident: Years ago, as a paralegal, I finalized and proofed a major brief in a civil rights lawsuit. My law firm held a press conference to announce and distribute the brief. I was sitting in my cubicle. Standing over me was a well-known local TV reporter. As the conference started, she was flipping through the brief.
    “You’ve got a type here,” she said snidely.
    “Where?” I said, trying not to show her I was upset. But I was upset: it was my work and I took it personally.
    “Here,” she said, continuing snidely. “You wrote ‘tortious.’ You mean “torturous,” don’t you?”
    I was not snide to her when I pointedly distinguished “torture” from “tort.”

  • PS. And I just realized I HAVE A TYPO IN THAT COMMENT! Sorry. She said, “You’ve got a TYPO here.” Let’s call it appropriate and be glad I wasn’t proofing a major civil rights brief.

  • Michael Doby

    I turned auto-correct off during my first research and writing memo because it kept turning tortious into tortuous and causal into casual. Now when I see those errors I try my best to blame Word and not the attorney, but that doesn’t always work.