November 25, 2012

Judge Silberman on Acronyms: Use Sparingly

The Blog of Legal Times posted a helpful article last week on the liberal use of acronyms and abbreviations in legal writing. Judge Laurence Silberman of the U.S. Court of Appeals for the D.C. Circuit doesn't like them. The article cites a June opinion in which Judge Silberman complained about the excessive use of acronyms by both sides of a case: "Here both parties abandoned any attempt to write in plain English, instead abbreviating every conceivable agency and statute involved, familiar or not," he wrote. The same frustration surfaced in court last week, according to Legal Times, as the Judge chided counsel in a different case for using arcane acronyms.

The Judge makes a valuable point. A cardinal rule of legal writing is to respect your audience's need for clarity. In most instances, the judge (or judges) hearing your case will not be as familiar with the abbreviations and jargon of the matter as you are. Of course, acronyms are handy; they often seem to make sentences read more smoothly. But there is always a way to avoid them--especially if they will confuse or annoy the court.

Bookmark and Share

August 22, 2011

Know the judge as well as you know your case

When preparing for a trial, it is a given that you will spend much time preparing your case – focusing on the facts and law that are directly relevant to the matter in dispute. However, as I’ve learned from years as a trial attorney in Baltimore, a good pre-trial investigation also involves learning about the judge who will preside over the case.

As a trial lawyer, the more you know about the judge’s attitudes, beliefs, values, style, personality and background, the better able you will be to tailor your arguments to his or her predispositions. Many tools are at your disposal. Thanks to the Internet, numerous forums are available that may give you insight into the judge’s leanings and background that were not available years ago.

In addition to conducting online research, you should speak to the judge’s previous law clerks as well as other courthouse personnel and attorneys who have argued before this particular judge. There is no better way to gain insight into the judge’s style and idiosyncrasies that might have an impact on your case. You might learn, for example, if this judge is known to pepper counsel with many questions or if she tends to favor the government or the defense in criminal cases. You might learn if she has a short attention span or if she will likely have read your brief before oral argument – or if she’d likely just put it aside. Even details like whether she would be receptive to your moving away from the lectern are helpful in mapping out your strategy.

Say you learn from a previous law clerk that the judge disdains lengthy pleadings and, unfortunately, your complaint is very lengthy. When the court convenes and the judge asks if there is any business to discuss before proceeding, you might consider a response along these lines: “Your Honor, I would like to apologize to the court for the length of the complaint. Because this case is the subject of parallel proceedings in two other jurisdictions, we were compelled to present many facts that ordinarily would have been omitted.”

In this way, you confront the court’s concern in a pleasant manner before the judge ever addresses the issue, and you establish common ground and a mutual understanding.

As you conduct your research, be extremely mindful to avoid criticism of the judge or her style. I recall a trial in Baltimore several years ago during which two lawyers were in the courtroom before the judge entered. One attorney asked the other his opinion of the judge, to which the attorney answered that the judge was “in over his head.” The judge overheard the comments because the internal video and audio systems were inadvertently left on at the time. That did not set a good stage for the proceedings that followed.

Interviews with those around the judge will help you grasp her courtroom style, but you should also plan to read relevant opinions or other writings of the court so that you can gain an appreciation of the judge’s views. If those views differ from your position in your case, it’s best to know that before presenting your argument so you can work with or around the judge’s views most effectively.

You might confront the issue by stating to the judge, “I realize, Your Honor, that in the Baltimore Savings and Loan case you opined that a breach of fiduciary obligation is not an independent cause of action. Nevertheless, there are compelling reasons why you should consider modifying your view in this particular case.”

By doing this, you signal to the judge that you know and respect her view but that you want her to listen to your presentation with a mindset hospitable toward modification. You also remind the court that you are aware of the court’s standing on a particular point, have factored it into your argument, and you establish a common point on which your argument may begin.

Keep in mind that you sometimes may not want to attempt to persuade a judge to change a viewpoint because you believe the task is hopeless. In that event, you should focus on establishing the proper record for appellate review.

Though all of this research will be immensely helpful in preparing your case, bear in mind that there is no substitute for firsthand knowledge. If you are presenting a case before a judge for the first time, make every effort to observe the judge in action in several cases. Note the judge’s style, what she seems to like and dislike, how she relies on other cases. Then, tailor your presentation to her preferences. It is just part of the job of preparing your case for trial.

Bookmark and Share

August 5, 2010

Law Reviews Matter More Than You Think

It turns out that law review may not be so irrelevant in the courtroom after all. According to a study released last month on the website of the Social Science Research Network and reported this week in the National Law Journal, citations of law review articles in judicial opinions are on the rise. The finding contradicts the belief that law reviews are forums exclusively for academics, rather valuable tools to those who practice law.

Two law professors led the study: David L. Schwartz of the Chicago-Kent College of Law and Lee Petherbridge of Loyola Law School – Los Angeles. The professors found that, contrary to popular belief, “Over the last 20 years – there has been a marked increase in the frequency of citation to legal scholarship in the reported opinions of the circuit court of appeals.”

According to their study, there were twice as many legal scholarship citations over the 10-year period from 1999 through 2008 as there were in the 30-year period from 1950 through 1979. Seventy percent of all law review citations since 1950 have occurred in the past 20 years, the research concluded.

These findings may come as a surprise to some of the country’s judges, several of whom have gone out of their way to criticize law reviews as exceedingly theoretical and irrelevant. Other judges, though, clearly do attend to developments in legal scholarship, suggesting that so, too, should the lawyers representing clients before them. The challenge, of course, is in reading selectively, finding articles most likely to aid your practice. In this content-saturated world, that is no easy task.

Bookmark and Share

June 16, 2008

Maryland Discovery Problems & Solutions

Maryland Discovery Problems & Solutions is a new book co-authored by Chief Magistrate Judge Paul W. Grimm, Charles Fax (of Rifkin, Livingston, Levitan & Silver) and yours truly. We and others offered an unusual seminar based on the book at the Maryland State Bar Association's annual meeting in Ocean City last week. The Daily Record ran this preview of the event.

If you think you know discovery rules inside and out, note Judge Grimm's comment in the article:

Issues Grimm said he sees all too frequently include “non-particularized or generalized boilerplate objections” to discovery requests, which give the judge little insight when ruling on the subsequent motion to compel; lawyers stating facts in motions without supporting them with a citation to any affidavit or document; and lawyers who fail to realize that litigation proceeds in an “adversarial system but in discovery you have to cooperate” and compromise.

For those who want to brush up on MD discovery rules, you're not too late for two upcoming MICPEL programs on the same topic, offered on June 17 and July 16. Details available here.

Bookmark and Share

June 12, 2008

Researching judges

More on the subject of researching judges:

In addition to reading prior opinions and talking with former law clerks, court personnel, and other attorneys about the judge's manner and preferences, be sure to observe the jurist in court, particularly if you are presenting a case before him/her for the first time. There is no substitute for this firsthand knowledge.

Observe the judge's style, what s/he seems to like and dislike, how s/he relies on other cases. Then, tailor your presentation to these preferences. (Without, of course, compromising your own natural style.)

By way of example, consider the story of a young trial lawyer defending a criminal assault case.

Continue reading "Researching judges" »

Bookmark and Share

June 10, 2008

Communicating with Judges at Trial

The last post touched on writing for judges. Now let's consider prepping for an appearance in court. According to the receiver-centered school of rhetoric, the more you know about the jurist's attitudes, values, personality and background, the more effective an argument you can fashion.

How do you research a judge? To begin with, read all relevant opinions and other writings to gain an appreciation of the judge's views. If those views differ from the position you plan to present in court, be ready to acknowledge this difference, as a show of respect, and then explain why the jurist should hear you out. Think of the potential embarrassment if you started arguing your point, ignoring the court's standing on the matter. That kind oversight will be detrimental to your ethos in many cases.

Second, you will need insight into the judge's mannerisms, style and idiosyncrasies. For example, will the judge be receptive to your moving away from the lectern? Will she have read your brief before oral argument? How much time should you devote to the facts or to the questions presented? Does the judge have a long or short attention span? Does he pepper counsel with many questions? Reading opinions won't provide answers to questions like these.

Continue reading "Communicating with Judges at Trial" »

Bookmark and Share

June 3, 2008

Writing for Judges

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.

Continue reading "Writing for Judges" »

Bookmark and Share