October 7, 2014The Main Message
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.