As we discussed last time, the more we stay within the bounds of judicial decorum and decency, the more likely we are to prevail. If we let ethics guide our brief-writing, the system wins, the profession wins, society wins, and our client is more likely to win. If being respectful and diligent in our briefs had no upside, we could not in good faith recommend it; but beneath any discussion about how to write a brief lies a dependable truth: Our approaching brief-writing with “fairness” in mind is much better for our clients.
Remember—Judges Are Human
Judges might have a professional code to follow and justice to dispense, but they’re still human, and, like the rest of us, they respond viscerally to irritating things, like lawyers who indulge in hyperbole and can’t stop tossing digs at opposing counsel or even the lower court. And, like the rest of us, they respond well to the lawyers who try to help them do their job, which is to be fair. Because our job is to provide our client with the best possible chance of winning, we are wise to signal the judge deciding our client’s fate that we are the “Fair Advocate.” But how do we do that?
Every Brief Is a Negotiation
Think of every brief as a negotiation, not with the other side, but with the judge. When we negotiate, we don’t use snide, strident language, and we don’t call people names; we don’t grossly exaggerate; and both sides must benefit. In this negotiation, we benefit by having the judge decide in our client’s favor; the judge benefits, first, because deciding for us is fair and logical and, second, because we show respect for the system, the bench, and even our opponent. Below, we offer several ways to help establish a tone of fairness and honesty in a brief. By itself, not one will persuade the judge to decide for us, but cumulatively, they move a judge to listen to us more carefully and closer to wanting to decide for us.
Here are five ways in your brief to let the judge know you are the “Fair Advocate”:
- Treat Both Sides Equally: Don’t try to personalize your client, while de-humanizing your opponent’s client, by calling your client by name and the other side “the defendant.” Address both sides equally: “plaintiff” and “defendant,” or by their names, or by their roles.
- Check the Hyperbole: Judges know that a lawyer has no case when he adopts a “shrill” tone. Evocative words like tyranny and phrases like run amuck might make our clients happy, but they cause judges to distrust us.
- Avoid the Little Digs: Don’t use derogatory adverbs to open a sentence. Words like Unfortunately, Interestingly, Curiously, Conveniently, Surely, Incredibly, Amazingly, or any similar adverb, are little digs that send a message to the judge that we are not a “Fair Advocate.”
- Drop the Rhetoric: When we write inflammatory phrases like approaches the frivolous or borders on the laughable, we undermine our own credibility. These phrases are neither colorful nor clever, and judges inform us that when they see one, it tells them this about the lawyer’s case: He doesn’t have one.
- Ignore the Bait: If our opponents write digs and hyperbole, judges notice, and it goes right into the negative column. If we respond, we surrender the high ground and find ourselves in the typical liar-liar-pants-on-fire-bite-me-up-yours-so’s-your-mother case that tries the patience of all judges.
Organize a Brief Simply
This might sound rudimentary, but it’s the first thing a judge sees, and it’s where she starts her opinion meter ticking, assessing us, our brief, our client, and our case: how we label each of the main sections of our brief. These labels are subliminal signs to a judge that she can rely on us. If we label them with more than one word, we risk sounding insincere and untrustworthy. Many lawyers adorn their fact statements with titles like “Overall Background of the Case,” which sounds to a judge suspiciously like there might be some facts in there, but also a lot of opinion, and judges don’t like lawyers’ opinions. We recommend you title each section with one clear word: INTRODUCTION, FACTS, ARGUMENT, CONCLUSION.
Writing “Like a Lawyer” Often Is the Problem
If we analyze the writing of lawyers considered by colleagues to be the finest legal writers in a firm or legal community, the one trait they all will share is that they do not “write like a lawyer.” They write like warm, logical, compassionate, intelligent, fair-minded humans. And judges respond favorably. They have a big problem to solve, they need help, and they want communication, not posturing and legal clichés.
When we remove the Latin, lead-ins like Accordingly and Moreover, inflammatory words like outrageous and disingenuous, self-serving conclusory words like obviously and clearly, the standard pursuant to, heretofore, and hereinafter, the dull puffed-up nominalizations, plus all words that add no meaning to our sentences, our writing automatically sounds more confident and is more helpful to the judge. Editing software like WordRake can help.
Submit a Shorter Brief
Submitting a brief shorter than what the court will allow signals the judge we have a strong case and we know it well. It is the surest way to create a good impression with a judge. Like the rest of us, most judges will turn immediately to the last page of anything they have to read to see how long it is. If a page limit is 20, over 95% of briefs will run 19 ¾ pages. If a judge sees 16 or 17 on that last page—based on her experience of having read thousands of briefs—she automatically will assume this brief will be better than most. So she turns back to p. 1 with a good feeling about the lawyer who wrote it even though she has yet to read one word. We recommend submitting a brief at about 80% of what the court is willing to allow.
With judges short on time and thin on patience, we should strive to make their job easier by becoming the “Fair Advocate.” As a “Fair Advocate,” we send the right signals to judges by remembering they’re human, wording the section titles of our brief transparently, treating both sides equally, removing hyperbole and digs, ignoring the other side’s hyperbole and digs, and submitting briefs shorter than what the courts would allow.
Editing software like WordRake can help us meet page and word limits by removing the words we don’t need to make our points.
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.