Effective Legal Writing: One Judge’s Perspective
By Retired Judge Wayne Alley
What does a judge want in writings (motions, briefs, applications, reports, proposed orders) filed in his or her cases? There is an easy answer; the judge wants an easy out. The judge wants a clear, simple, substantiated solution to the problem at hand — a solution with which he is comfortable. To this end, consider the following suggestions.
Tell the judge why. Except for uncontested applications, such as for extensions of time, both sides typically submit persuasive statutes, cases and secondary authorities in support of their respective positions. Not many positions are “slam dunks.” The judge needs to be educated not merely that the respective authorities are out there, but why one set of authorities leads to a better result than the other. The judge shouldn’t have to figure it out for him or herself. Included in the concept of a better result are simplicity of future application, achievement of economies, conformity with a general principle such as one’s responsibility for the consequences of his or her own conduct; consistency with legislative purpose (e.g., a judge should not be chintzy in construing and applying a remedial statute); minimal disruption of the way things are ordinarily done; and whatever else the imaginative lawyer/author can come up with.
The effective presentation of why is positive, emphasizing the benefits that would flow from the adoption of one’s position rather than reciting a parade of horrors that might ensue from the adoption of the opponent’s position. Some allusion to the downside of the opponent’s position may be helpful, but it shouldn’t be dominant in the writing or be patronizing, strained or nit-picky.
Be succinct. My office was a paper mill. Piled up, the writings filed in a typical week would reach a height of 18 to 24 inches. After some bad early experiences, I decided never to be absent for more than a week. Otherwise, the accumulation would have been overwhelming. If you want the judge to stay with you when he or she reads your work, edit, edit, edit. If the judge wants to read a law review article, the judge will go to the library and get one. Whatever you say, say it only once. Repetition doesn’t result in a higher degree of understanding. Instead, it numbs the mind and glazes the eyes. Ordinarily, the bulkiest filings are motions for summary judgment and responses thereto, because of attached documents, photographs and deposition excerpts. The lawyer/author should be economical with attachments so that the reader, who is the decision-maker, doesn’t drown in words. Set out only so much of a document or deposition as affects the decision at hand, instead of the entirety. Quotations in the text of a motion or response can be effective of course, but far too often they are far too long.
Within a quotation, it is likely that only two or three sentences matter. Have in mind a scene in Amadeus, in which the emperor criticizes Mozart’s latest composition by telling him, ‘’Too many notes.” Perhaps the emperor was not the brightest or the most qualified student of music, but he was, after all, the patron with the purse.
Tell the judge precisely what remedy (or remedies) you seek. For some simple matters, you may be expected to submit a proposed order. Otherwise, you anticipate that an order will be prepared in chambers. Whether you craft the remedial part for the judge’s consideration, or expect the judge to be the author, don’t leave it to him or her to divine your desires. He should only have to decide “yes” or “no.” I found many applications for TROs or preliminary injunctions to be deficient in this respect. The effective advocate lays before the judge a proposal that specifies exactly who is ordered to do or desist from doing exactly what and by when. It is not the judge’s office to read your mind trying to figure out what he is supposed to do to solve your problem for you.
Play fair. An effective legal writer has credibility. He or she achieves this by being truthful, accurate and fair. Quotations are verbatim; meanings are not distorted by misleading elisions. Phrases are faithful to the meaning of the paraphrased language. This is particularly important when he informs the judge what a cited case holds. He doesn’t present an obiter dictum as a holding. Dicta can be persuasive if precisely on point, but the author should be candid as to what it is. Statutes can be hard to read. A common technique by legal writers, including judges, is to pluck out of a long and convoluted statutory sentence only those words that are operative to the issue at hand, noting the skipped-over words by dots of elision. The writer must be careful not to elide language that hurts the case. It won’t do to rationalize that the other guy can clear this up if he or she is sharp enough to catch the wrongful omission. The other guy’s credibility is not the point. I cannot overemphasize that once credibility is lost, the offending lawyer is ever after at a disadvantage.
When there has been a trial, an evidentiary hearing or a deposition resulting in a transcript, fudging on the facts as shown therein in a later brief (or oral presentation for that matter) is fatal to one’s credibility as to everything else he is submitting. Keep in mind that the “facts” for this purpose are the words of the transcript and not the circumstances and events to which the transcript pertains.
Pep it up. Direct the judge to the real world by citing news stories, articles and other non-legal materials. The rules of evidence narrowly channelize the presentation of facts at trial, but writing a motion or brief is not so restricted. Recall that legally obliged school segregation by race in Topeka was declared unconstitutional through a 1954 Supreme Court opinion that relied heavily on sociology texts. The unanimous court was persuaded by effective reference to the real world. Get your judge out of the ivory tower.
Be wary of hedging, asking the judge, “Well, if you don’t buy my primary position, how about this as a fallback?” In some cases, hedging can’t be avoided, but it comes at a cost. It detracts from the persuasive power of the primary position. Sound judgment is key to a decision to hedge, but have in mind the importance of the courage of exclusion.
Finally, a negative: avoid an ad hominem at-tack on opposing counsel unless his or her misconduct is beyond crystal clear. These attacks usually are made in discovery disputes, with (written) dark mutterings about “bad faith” or “fraud on the court.” In my cases at least, very few of these were well founded. Look up Rule of Professional Conduct 8.3, which obliges a lawyer to report to proper authority, usually the bar association, certain misconduct done by another lawyer. “Fraud” is certainly included. When an advocate asserts fraud done by his or her opponent, he or she must be prepared to answer the judge’s query whether he or she has made the requisite report; and, if not, perhaps face a court order to write the bar association and cite the opponent with fraud, providing the factual basis, copy to the judge. Ouch.
ABOUT THE AUTHOR
Judge Wayne Alley was born in Portland, Ore. In 1952, he graduated from Stanford University and entered active duty in the U.S. Army. In 1957, he graduated from Stanford Law School and was appointed law clerk in the Oregon Supreme Court. He entered private practice briefly, then reentered the Army. In 1981, he retired early to become dean and professor at OU Law. In 1985, President Reagan appointed him to the U.S. District Court for the Western District of Oklahoma. He is now “Jurist in Residence,” pro bono, at OU Law, primarily residing at moot courts and mock trials.
Originally published in the Oklahoma Bar Journal-- Feb. 14, 2015-- Vol. 86, No. 5