Motions first, depositions second

In my business, litigation, there is a typical order of events. A lawsuit is filed, then discovery is taken, then motions are filed and ruled upon, and then there is a trial. Litigators who haven’t thought carefully about their business may fall into the error of compartmentalizing these steps too much. Have you ever gone to write a crucial motion, only to discover that the testimony or documentary evidence that you need to put forward under the applicable law was never obtained, or came in the wrong way without being fixed? If so, you should have realized that you may have done things in the wrong order.

Just as you should write your closing argument before you draft any motions, you should also write—or at least rough out in detail—your crucial motions before you take any discovery. That will force you to learn precisely which legal standards apply, and thus what evidence you need to get or to overcome. It will make you notice gaps in the evidence—both formal gaps, i.e., missing essential elements, and rhetorical ones, i.e., possibly jarring holes in what could otherwise be a nice coherent story about the facts.

Now that you know what you will do with it, go get your evidence. Your discovery requests and deposition outlines are now half-done because of your preparation work on your motions, and your discovery efforts will be directly on target.

I’ve heard lawyers say that they don’t want to be too clear in discovery (written and depositions) because it will tip off the other side. That’s like suggesting that you not aim the artillery too precisely because the enemy will figure out what you’re shooting at. Aim straight from the start.

Filing due in 30 minutes

One of your partners calls you up and says “I have a filing due in thirty minutes. I forgot I needed to look at the draft until just now. I have an associate standing by to make any edits that you have, and I’m stuck in traffic. He’s walking it over to your office right now. Would you please look at it?” What should you do first?

Thirty minutes is far too little time to edit a brief properly. If it’s an unintelligible mess, you won’t be able to fix that. If the research and analysis is incorrect, you won’t even be able to detect that in such a short period of time (unless you know this area of law cold), and couldn’t fix it even if you knew it was wrong. Thirty minutes to deadline with a previously unedited brief is apply-lipstick-to-the-pig time. But some lipstick can indeed be added in this much time.

First, ask the associate, when he arrives, to sit down. Have him tell you what the filing is about, what the main point of the brief is, and what you need to prove to win. Take the time to know exactly what the brief should be conveying before you even look at it.

Then look at the brief and see if it tells you the same thing, in plain language, right away. If not, write a few sentences so that it does. Flip through the rest of it to make sure that the main headers and initial paragraphs all point in the same direction and support the main theme. Take your best thirty-second shot at fixing any that don’t seem to. Spend twenty minutes on this.

Spend the rest of your remaining time before you must hand it back scanning for typos, obviously awkward sentences, and other signs of overt ugliness. While these may be, to a logician, less important than substance, you don’t have enough time left to fix substance. You can catch some typos in a few mintues. Most judges take points off for sloppiness, reasoning that if you can’t be bothered to spell words correctly, you probably aren’t too careful with your research and analysis, either.

When the associate says he has to have the brief back to get it filed on time, put down the red pencil and hand it back. Then make a note on your calendar to have a talk with your partner tomorrow about working out procedures to make sure that every brief gets its due investment of time and care.

When to cut corners

I’ve had a lot of different law firms on the other side of the v from us over the years, and have frequently observed that some firms seem to have several different levels of briefing quality. When we file a deadly summary judgment motion, we see their best work in the opposition brief. When we file a motion for leave to file supplemental authority, and they oppose it (?!), we see something very different: typos, no attention to formatting, sentences that read as dictated-but-not-read, and so on. There is some superficial logic to this: they are focusing their energy on the more critical briefs and issues, and cutting corners with the less critical ones. Even if you, the reader, don’t exactly “cut corners,” you may well pay less attention to “minor” briefs than major ones.

Not paying full attention to minor briefs is a mistake. It is a missed opportunity to advance your themes. And it may well impair your ability to persuade the judge when the time comes to file a really important brief. When we observe someone behaving in a certain way, we tend to assume that they are behaving that way because of a fundamental trait of their character. If we see a strange man curse and kick a rock, we tend to conclude that he is an angry and violence-prone person. (If we curse and kick a rock, we tend to explain the action by present circumstances: I kicked the rock because I’m late and I can’t remember if I’m supposed to be at 250 East Main or 250 West Main; anyone would kick a rock in this situation.) This is known as the fundamental attribution error.

When you file a sloppy brief about a minor issue, you risk having the judge conclude that you are a careless lawyer (rather than that you just chose not to spend a lot of effort on the issue, or ran out of time because your computer crashed, or had some other situation-specific reason). Once branded as careless, you’ll have a hard time climbing out of that hole. The judge may evaluate your later masterpiece with a more critical eye as a result. Of course, you might get away with it—judges remember your particular case in between motions that require their attention less than you might think—but you probably don’t want to count on that.

Doff thy wig

People who belong to a group tend to take on various external trappings of that group. For example, in general, lawyers dress differently than MMA fighters, and not because members of the former group happen to share a love for silk ties or scarves while members of the latter group do not. Clothing, hobbies, vices, choice of cars, taste in restaurants, and many other things can in part be markers of class, vocation, and other social positions.

This little sociology lesson is relevant to this blog only to the extent that it influences writing. And it certainly does influence writing. I have never seen the comparison done, but I am sure that an analysis of people’s writing before and after law school would show a sharp increase in jargon, needless elaboration (e.g. “on or about”), and pretentiousness. This is not because law school softens your mind, but because it initiates you into a new group: Lawyers. It’s very easy to make the mistake of adopting, as part of the professional plumage, the same awkward and barely-penetrable style you’ve spent the last three years reading. After all, the very first words that you read in law school were probably these, or something just as bad:

Replevin for a cow. Suit commenced in justice’s court; judgment for plaintiff; appealed to circuit court of Wayne county, and verdict and judgment for plaintiff in that court. The defendants bring error, and set out 25 assignments of the same.1

Don’t do it. Wear the suit, drive the car, even buy the country club membership if you must, but don’t write like a constipated old man with a powdered wig. If people become confused because they can still understand you, show them your bar card.

1  Sherwood v. Walker, 66 Mich. 568, 33 N.W. 919 (Mich. 1887).

Tell the judge your argument is weak

At least nine times out of ten, that weak argument in your brief should be on the cutting room floor instead. Sometimes, though, you have to make it. For example, sometimes your only path to victory is a three-part legal argument, with one part based on a questionable legal proposition. If so, you just have to do your best with it.

If you have to make a weak argument, consider admitting that explicitly in your brief. The judge probably isn’t going to get farther than your opponent’s brief without realizing that yours is weak on that point, and a weak argument saps the credibility of your strong arguments. The judge will wonder if perhaps your other arguments conceal weaknesses as well.

One bold solution to this problem is to frankly acknowledge the weakness of the argument. For example:

No court in this jurisdiction has yet excluded an admission made after less than an hour of questioning, and language in Cerillo suggests that lack of sleep is irrelevant when an interrogation lasts less than six hours, but this case has extraordinary features that warrant exclusion nonetheless.

Almost any judge who reads a sentence like that will respect your honesty, will trust what you say more because of it, and will probably be more inclined to give your tough argument a fair look.

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