As a young attorney trying to find the best way to express myself on paper, I’m reminded of the Philadelphia 76ers rally cry for their ambitious rebuilding plan.
In writing a motion, legal memoranda, or letter brief, a lawyer must have the virtue of patience and dedication in drafting their work.
We are employed because of our use of language. We must learn to love words, and use them effectively. My law school professor would often say, “there’s no such thing as good writing, only good rewriting.” In being committed in the long-term approach, instead of short-term shortcuts in perfecting your legal prose, here are four tips in trusting the writing process.
Know Your Audience
A good lawyer tries to learn as much as possible about the judge who decides their case.
Judges can be persuaded when three conditions are met: they must have a clear idea of what you’re asking the court to do, they must be assured that it’s within the court’s power, and after hearing the reasons, they must conclude that what you’re asking for is the best outcome.
Following precedent is a concern for all judges, especially trial judges. Beyond stare decisis, there can be a myriad of possibilities of what can motivate the fact finder. Maybe the credibility of your star witness, or the perceived winner from a battle of the medical experts. Primarily text or primarily policy? Some judges believe that it is their duty to strictly apply the textual ordinary meaning without assessing the consequences, or some judges believe it is their duty to give the text whatever permissible interpretation that will produce the most desirable outcome. All judges would agree that their decision must be driven by fairness for the most equitable result guided by founded legal principle.
Just as important—know what the judge has decided before. The best place to get answers to such questions is from the horse’s mouth: Read their decisions and know their judicial philosophy. Also, read any judge’s articles and speeches on relevant articles to get to know their idiosyncrasies. Ask junior or senior partners who understand the tendencies of your judge, and ask about their experiences. This insight is invaluable in determining how you want to make your arguments. Put yourself in the shoes of the judge and opposing counsel. Anticipate the other side’s arguments and the judge’s likely questions when you write.
Bear in mind that trial judges are fundamentally different from appellate judges. Trial judges focus on achieving the proper result in the matter before them, not on crafting seminal law. They will pursue that objective principally through their treatment of facts and discretionary rulings. Therefore, spend your time on the facts and mandatory authority, not policy arguments.
Many firms maintain an interoffice database of previous submissions, categorized by subject matter. Use these templates as a starting point, but specifically tailor the facts to your case. Most importantly, be mindful of your judge’s specific rules when submitting a brief such as word length, font, deadlines, or procedural submission requirements.
Know What You’re Asking For
We all have short attention spans in the era of smartphones.
When writing, always state up front what you’re asking for, and always have a persuasive opening. The objective of a brief is to make the court’s job easier. How do you do that as a young lawyer writing to the court? Brevity, clear headlines, identification of the issues, statement of facts and controlling case law.
Put your winning argument up front. For primacy reasons, judicial attention will be highest in the beginning. Pick the best three reasons why you should prevail, and develop them fully. Extra words are the enemy. Make sure you eliminate them. Never waste the court’s time since they’re burdened with many other cases. In the end, close powerfully and say explicitly what you think the court should do. The conclusion should briefly summarize the main arguments in relation to the law, and why that position must be vindicated.
Your legal and factual premises must be well founded, and your reasoning must logically compel your conclusions. While computers function solely on logic, human beings do not. Judges swear an oath to be impartial, but factors such as emotions, biases and preferences can intervene.
All of us are more apt to be persuaded by someone we like versus someone we dislike. Consequently, your objective in every argument is to show yourself worthy of trust. Be meticulous in making sure there are no grammatical errors. Never mischaracterize precedent to suit your case. Sometimes conceding what should be conceded, you can establish your credentials as a reliable and even-handed counselor. Confront the glaring issues in your case and address them forthright. This shows respect to the intelligence of your audience.
Know Your Case
Have you ever tried to buy something from a salesperson who didn’t know anything about their own product? As lawyers, we are selling the merits of our case.
You must become an expert on every legal and factual aspect of their writing. If it becomes clear that the writer does not, the judge (and don’t forget their law clerk) will take notice. An example would include omitting a completely necessary case. Do not expect the court to give you too much weight thereafter. You will be arguing to the court about the law, but what law applies—what cases are in point, and what cases can be distinguished—depends ultimately on the facts of the case.
Once you’ve worked tirelessly on your case, you’ll probably be absolutely convinced that your side is a clear winner. As you should. Judges have not put in the same amount of time and have many other cases to consider. You’ll suffer a loss of credibility and lose effectiveness of your argument if you exaggerate what is before the court.
Know That Writing Takes Time
Rewriting is not the message we want to hear because it takes work. It means much reflection and trying several variations to see what works best. A good writing style is to write, and to write often.
There are no rough drafts. Whether you are sending a motion, memo, letter, or email to a client, partner, or judge, treat it like it’s the most important piece of paper that is tied to your reputation.
The Philadelphia 76ers finished their current 2017-2018 season with 52 wins, more than their past three seasons combined. In suffering through growing pains, it takes time to find the right word choice. It takes time to find our inner voice as a writer, and it is our obligation to those we represent. It takes time to be brutally honest about your initial draft and how you can earnestly improve.
As a young lawyer, you must “Trust The Process” in developing your writing skills as a continuous investment in your legal career.
Raphael F. Castro, an associate at Pond Lehocky Stern Giordano, is a workers’ compensation attorney. He earned his law degree from Widener University School of Law, graduating in 2014.