5. Retaliation Is Zealous
Many lawyers with a weak case will accuse the other lawyer of delay tactics, ulterior motives, and outrageous behavior. And they have a chance of winning that weak case only if the other lawyer retaliates. That’s why they do it. They want the case to devolve into a shouting match, so the judge can’t see the issues. Unless they claim you have violated legal ethics, let them run; the judge and the clerk will notice, and they already know that the louder a lawyer screams on paper, the weaker the case. They’ve seen it too many times.
6. Arguing in the Facts Is Shrewd
The surest way to lose a judge’s confidence in us and our brief is to slip opinions into the fact statement. This is where we not only tell the judge our client’s story, but also where we establish credibility with the judge. Even words like small and cold are opinions; get the size and the temperature; keep the facts factual.
7. All Facts Are Necessary
This is the bane of all writers, including lawyers: knowing what to leave out. Just like good journalists, we lawyers have to decide which facts are necessary and present only those to the court. We never ignore bad facts—we have to address those—but we never include a fact just because it’s a fact; it has to be a relevant fact, and to be relevant, it must help to support and explain one of our issues.
8. A Page or Word Limit Must Be Filled
A judge or clerk will look first at our last page to see how many pages they have to read. If the page limit for that brief is 20, and the judge sees a “16” or “17” on the last page, it signals that the lawyer has a good case and knows it well. Judges have learned this from experience—shorter briefs are almost always better—and they will turn back to the first page feeling good about the brief and the lawyer who wrote it. Too often, lawyers say to themselves or an associate, “We’ve got three more pages; let’s stick something in here!” And that’s what they do.
9. Anybody Cares What We Think
We cannot say this often enough: Nobody cares what we lawyers think; everybody wants to know how we got there. That is the art, the heart of persuasion: the facts that led us to what we think.
10. Writing “Like a Lawyer” Impresses the Court
Writing “like a lawyer” is the problem. When we use excessive legal terms and wax argumentative, we irritate and frustrate the court, who is there for one reason: to render a fair decision. We don’t want an irritated, frustrated judge deciding our case, especially when we are the source of the irritation and frustration. We should always think like a lawyer, but write like a warm, logical, intelligent, fair-minded human. By the way, those traits also describe judges and what they are sworn to do on the bench; and they are looking for our help.
We can never guarantee what will happen inside chambers, the courtroom, or a judge’s head. But avoiding the allure of these myths gives us the greatest chance of success.
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.