For the unaware, the ABA has numerous divisions focusing on a variety of topics. Rainmakers, Young Lawyers, Women Lawyers, etc. Each division provides its own variety of services. Of particular note is the Litigation division that publishes a brief podcast titled “Sound Advice” on a semi-regular basis. The most recent edition features the Honorable Lee H. Rosenthal, a U.S. District Court Judge for the Southern District of Texas since 1992. Judge Rosenthal discusses writing for judges with a particular focus on Motions for Summary Judgement. You can give it a listen here:
My listening notes* are below if you just want the highlights:
Primary means by which lawyers communicate with judges: not in courtroom, but through writing. In general, lawyers write “lousy.”
Lawyers should write the way people who wish to communicate clearly and effectively write: plain, simple, well-constructed, declarative sentences, free from such words as “hereafters” & “forthwith.” Free from redundancies of past ages and unnecessary descriptions.
- Lawyers should write good English, not technical jargon.
- Biggest problem judges have in read what lawyers write: badly written.
- Lawyers properly complain that judges take too long to rule and make mistakes in ruling. Real problems.
- Not saying that bad writing is the root cause of these problems, but they don’t help.
How a brief should be written:
- Brief statement of issues and what lawyers is asking judge to do.
- Proceed in well-constructed fashion that follows the road map laid out in the beginning.
- Headings are helpful.
- Concluding paragraph that summarizes the action the lawyer wants the judge to take is helpful.
- All will contribute to the judge being able to decide faster and more accurately.
- Judges are frustrated with lawyers who bring SJ on every part of case.
- Judges are frustrated with lawyers seeking to avoid page limits do so by attachments or exhibits that essentially add to the brief.
- Judges are frustrated with lawyers who attempt to educate judge on what case is about.
- Judges are frustrated with lawyers who “lard” brief and supporting information with materials that contain a tiny piece of information the lawyer wants the judge to consider – but lawyer submits large volume of information with no indication of tiny piece of information therein. Judge doesn’t know only one piece of information being presented and feels compelled to review entire volume. Then irritated with lawyer afterwards.
- SJ should be used selectively and should be reflected in supporting materials.
- 12/1/10 – change to Rule 56 will take effect. Will require lawyers to submit pinpoint cites to supporting information.
- Discipline that is necessary is that on lawyer to tell client that their case is not a good one for SJ. Or that SJ is only appropriate on a partial basis.
- Only present court what matters.
D to write brief and supporting information as clearly, directly, and concisely as possible in the language of general communication – which is the language of the law.
*These are not an exact transcription.