This post, the conclusion of a Top Ten countdown from the Lady Legal Writer, culminates with the correct #1: be clear in your briefs. Write clear sentences; write clear paragraphs, write clear headings, and be very clear about what you want. If someone takes just one thought from this blog, I recommend that you concentrate on the fact that judges are human, just like you and me. Judges suffer from too many cases to decide, too many briefs to read, and too little energy to complete their tasks as they would like to. So what should you as an advocate do? Make your judge’s life–or at least your little speck of it–as easy as possible. When arguing to a judge, either orally or in writing, make your argument as clear and succinct as possible. Do the contrary only if you prefer that your judge not understand you argument.
This whole series–Commandments 10 through to 1–are worthwhile. Earthshaking, no; but unless you never need reference to the fundamentals, the series bears reading in full. (Also, in this last post, she provides an example of some really purple prose. I’m favor more vivid legal writing, but this stuff could merit a Bulwer-Lytton prize! )
Okay, with apologies to Admiral Dewey (“Damn the torpedoes and full speed ahead”), I couldn’t resist the caption. The point, set out by my favorite legal writing guru, Bryan Garner, is that citations out to be relocated to the bottom of the page because they make reading the text so much more difficult.
With word processing, such a move is easy and without any major downside. If, at time of reading, you want to check the citation, it will be there (and if in an electronic document, with an appropriate hot-link to boot). But when reading for the gist of the argument, the use of footnotes for citations would make the reading and comprehension a great deal easier. Don’t we want to make our lives, including the lives of our judges (seriously), easier? Of course. Garner reports some courts have already adopted this better practice. More of them should do so.
You can read Garner’s ABA Journal article here.
Below is a link to a law review article. Normally, I’m not out to punish readers, so you may ask why I have included a law review article. Fair enough. I have done so because it’s a tongue-in-cheek article written by 9th Circuit Judge Alex Kozinski. Its topic is straight forward: how to lose an appeal. Kozinski focuses on the two tools available in an appeal: the brief and (if you get it) oral argument. Kozinski even points out that the ability to lose an appeal allowed LBJ to win an election and for Abe Fortas, the author of the losing brief, to gain a seat on the U.S. Supreme Court. Any guesses about who appointed Fortas? Anyway, the article is a bit dated (1992), but only because it’s from before the era of word count limitations made possible by word processing software. Otherwise, I think that the advice is timeless. Enjoy.
Kozinski The Wrong Stuff