Use every opportunity to argue the case

One thing that you learn as a trial lawyer is that everything  you do before a jury or a judge is an opportunity to persuade. If you get through a voir dire without educating the jury about important themes in your case, you aren’t doing your job. If you go to a routine scheduling conference without a plan to outline key themes to the judge, you aren’t doing your job.

And so it is with writing legal briefs. Every brief that you write is an opportunity to advance one or more themes of your case. I don’t just mean big substantive briefs about case-changing issues; I mean all briefs. For example, a pro hac vice  application in a complex tort case should—at a minimum— tell the judge that it is a complex tort case and recite your experience and expertise in precisely such cases, helping the judge to classify the case correctly in his or her mind and increasing your personal credibility. A motion to extend a deadline by two days can start with an introductory sentence describing the nature of the case in a way that advances your themes.

Judges are busy people with many other cases to handle; they simply do not know or care about your particular case the way that you do. They probably do not remember it particularly well from motion to motion. You want them to at least have immediate recognition when they look at the first page of one of your briefs (“oh, this is that  case”), and better yet, immediate recognition of one of your themes (“oh, this is that case about those miners who died in the mine fire,” or “this is that case with the statute of limitations problem”).

The same principle applies within a brief. Every section of a brief should advance your theme: the statement of the applicable legal standard should do so, the table of contents should do so, and absolutely the statement of facts and statement of issues should do so. (We’ll talk about all of those sections later in this blog.) Any time you find yourself cutting and pasting a section from a previous brief or skipping over a section because it is just something that the court made you put in, you are missing a powerful opportunity to argue your case.

Of course, the judge might not read those sections any more than you usually read them, perhaps because he or she is accustomed to those sections containing nothing but poorly-crafted verbiage. But do you want to count on that? Or do you want to take some extra time to create a brief which will tell anyone who reads it that this is an exceptional brief that deserves exceptional attention and regard?

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