“By replacing formulaic openers with forceful arguments,” says Burlingame, “lawyers can capture the judge’s attention, enhance their credibility, and show from the outset why their clients should win.”

Here’s a typical opening paragraph from a brief:

NOW COMES PLAINTIFF BELCOM COMPUTER COMPANY, INC. (“Belcom”), and files this its Opposition to Defendant Worldwide Telco, Inc.’s (“Worldwide’s”) Motion to Dismiss or, in the Alternative, to Strike Pleadings Based on Plaintiff ’s Violation of This Court’s June 13, 2003 Order (“Worldwide’s Motion to Dismiss”), and for its Opposition, Belcom would respectfully show unto this Honorable Court as follows:

Ugh. It’s full of archaic jargon, unnecessary parentheticals, and completely devoid of any substance. There is not a thing in it to remind the judge of the issues when the case is called. The only thing it does effectively is remind the judge (twice!) that Belcom has been accused of violating a court order.

Related“Striking Introductions Make Memorable Legal Writing”

That example comes from “On Beginning a Court Paper,” an article by Beverly Ray Burlingame in the Michigan Bar Journal, but every litigator has plenty of similar examples in their own files. It is a prime example of what happens when lawyers blindly copy from old documents. There’s no reason you have to use “now comes …” to begin a brief, but plenty of briefs start that way. There’s no reason to use a parenthetical for completely obvious shorthand (“Belcom” for “Belcom Computer Company, Inc.”), and there is no reason to repeat the caption.

As Burlingame points out, opening paragraphs like this “waste judges’ time and sacrifice a valuable chance for persuasion.” Consider this alternative:

Belcom has fully complied with this Court’s June 13, 2003 order to amend its complaint. As the order requires, Belcom’s amended complaint states specific facts supporting its contention that Worldwide deceived the patent office in applying for the patent at issue, thus rendering the patent invalid. Instead of disputing those facts, Worldwide now seeks drastic relief—asking this Court to dismiss or strike Belcom’s invalidity claim. Worldwide’s motion should be denied.

That’s much better. It gets right to the point, doesn’t insult the judge’s intelligence, and sums up the argument. On the day of court, the judge should be able to refresh her memory from a quick glance at the first page of the brief. “By replacing formulaic openers with forceful arguments,” says Burlingame, “lawyers can capture the judge’s attention, enhance their credibility, and show from the outset why their clients should win.”

(h/t Legal Skills Prof Blog)

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