The Ethics behind Successful Brief-Writing
Keeping an eye on ethics as we write helps us lessen the weight of suspicion ever on the mind of a judge tasked with trying to figure out what really happened in an arena contentious by nature.
In the old ABA Model Code of Professional Responsibility, the infamous Canon 7 read: “A lawyer shall represent a client zealously within the bounds of the law.” The ABA had to replace the standard, because too many lawyers stopped at zealously.
In 1983, the ABA promulgated the ABA Model Rules of Professional Conduct and a new standard: “Model Rule 1.3: Diligence,” which requires a lawyer to “act with reasonable diligence.” The accompanying Comment specified that the new standard “does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.”
Diligence or zeal, many of us still believe that representing clients successfully requires us to shout on paper and belittle opponents. Even the highly principled among us sometimes let digs and jabs enter our briefs—it feels good—but we forget that every one of those slips is noted first by a clerk, and then by the judge, and that with every slip we lose a little credibility.
The Psychology behind the Ethics
For 25 years we have asked hundreds of judges and clerks a simple question: “In one sentence, what are you (or your judge) trying to do on the bench.” The answer always includes the word fair.
Because a judge knows nothing about our case, she must rely on us and opposing counsel to educate her. And if her job is to be fair, and she has taken an oath to dispense justice evenhandedly, she is looking for one or both of us to help her do her job. Yes, we’ve seen ethical lawyers victimized by local politics and judges swayed by the judicial election process; we realize we can’t win over every judge; but the best way to get any judge to want to decide for us is to send signals that we are the “Fair Advocate.”
Walking the Ethical Path to Defeat the Other Side’s Case
Defeating the other side’s case is our job, but often we try to do that with name-calling, cute characterizations, hyperbole, and unreasonable demands; instead of clear, concise sentences, compelling stories, thought-provoking facts, and well-constructed paragraphs of argument. (For more on this, see WordRake Writing Tip: “Your Honor, You Are Stupid, You Suck, and Please Decide for Me.”) We understand the temptation; we’ve all been there; but often we succumb to the temptation because no one has ever taught us how to use words to enliven our cases in ways that make judges want to decide for us. They don’t cover this in law school. We’ll show you the most successful ways to defeat the other side’s case—while remaining ethical.
Next week, in The Perfect Brief, Part 2 – Thinking Like a Judge, we’ll crawl inside judges’ heads to see what’s going on in there and how we might get them to see us as the “Fair Advocate” they can rely on to help them do their job.
About the Author
Gary Kinder has taught over 1,000 writing programs for the American Bar Association, the Social Security Administration, PG&E, Kraft, Microsoft, and law firms like Jones Day, Sidley, and WilmerHale. His critically-acclaimed Ship of Gold in the Deep Blue Sea hit #7 on the New York Times Bestsellers List.