Writing for Judges :: The Art of Advocacy

It's obvious that attorneys should research judges before they argue before them, and that they should write their briefs with the judges' philosophies and predilections in mind. Why, then, do judges remain so frustrated with how lawyers write motions?

U.S. Supreme Court Justice Antonin Scalia apparently feels so strongly about the subject of legal writing that he's devoted much of his new book to it (Making Your Case: The Art of Persuading Cases). If you haven't time to read the book, you might check out this older article, published in 2002 by Georgetown law professor Kristen K. Robbins Tiscione. The piece summarizes the results of an unusual survey of federal judges on the subject of legal writing. Three hundred and fifty-five judges took part in September 1999, and their collective responses portray a judiciary that is a bit fed-up with long-winded briefs that are nonetheless lacking crucial legal analysis.

Here is the quote that caught my eye:

Only fifty-six percent of the judges think lawyers "always" or "usually" make their clients' best arguments. Perhaps worse, only thirty-one percent think lawyers "always" or "usually" refute their opponents' best arguments. The image that comes to mind is that of the summer associate, who diligently researches a legal issue by submitting a notebook filled with copies of the pertinent cases. "So, what did you find?," asks the assigning partner. "Oh, it's all right here," replies the associate. But the task too often falls to the senior attorney to figure out what the cases mean in the given context.
Judges, too, want to know what to make of the applicable law, and lawyers are missing a great opportunity to influence their thinking. Only twenty-three percent of the judges rated the quality of legal analysis in briefs as "excellent" or "very good."

To me, this is not evidence that attorneys are incapable of making sophisticated arguments. Rather, lawyers simply fail to acknowledge what busy judges need when reviewing motions and making decisions.

When writing a brief, put yourself in the shoes, or the eye glasses, of the judge on whose desk it will ultimately land. Realize that they have dozens of other briefs to digest and have busy lives outside of court. They want to do their job well and efficiently. That requires that you do you job in such a way as to inspire trust immediately. When it comes to briefs, that entails penetrating the central legal questions with writing that is concise, clear, logically astute, and technically flawless.

More next week on communicating with judges at trial.