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.”
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?
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.