The Legal writing Prof Blog has mention of a short article in The Missouri Bar’s newsletter, Precedent, on persuasive writing for generalist judges.
Judges in general jurisdiction courts also may not initially be as familiar as counsel with the substantive law that will decide the case. As American law has grown increasingly intricate and diverse in recent decades, more and more lawyers have opted for specialty practices. Specialization means that judges may come from private or public sector careers that exposed them regularly to only some of the substantive law that now fills their dockets.
As such, it falls to the attorneys before the court to help direct the court both in its understanding of the matter before them as well as making the proper decision. Or as is noted in the article, “The law is made by the Bar, even more than by the Bench,” said then-Judge Oliver Wendell Holmes in 1885.
As such the article offers two strategies in order to more effectively craft your writing for generalist judges who might no have your own breadth of knowledge in your specialty area.
Avoid Jargon
There is nothing wrong with a specialized vocabulary – for use by specialists. Federal district and circuit judges, however, . . . are generalists. We hear very few cases involving reinsurance, and cannot possibly achieve expertise in reinsurance practices except by the happenstance of having practiced in that area before becoming a judge, as none of us has. Lawyers should understand the judges’ limited knowledge of specialized fields and choose their vocabulary accordingly. Every esoteric term used by the reinsurance industry has a counterpart in ordinary English. – Judge Richard A. Posner
That lawyers should avoid jargon is a common refrain on this site and many others that value clear and direct legal writing. Use one word instead of two. Use a shorter one instead of a longer one. Reading briefs and motions dense with legalese isn’t pleasant for anyone. Don’t do it.
Orient the Court
The facts too may initially disorient the trial judge who did not pore over drafts of preliminary papers or attend the depositions, and the appellate judges who did not preside at the trial or create and assemble the record step by step. Discussion of the facts – the bedrock of most cases, even before application of the law – should not assume the judge’s familiarity with the case. When a brief or other written submission cites to depositions, the trial transcript, or other papers in the record, advocates serve their cause best by explaining the point they mean to explain or support.
Funny and true story: A month ago I picked up a brief and started reading it and was immediately confused by where it was going and what it was actually about. There were no signposts or clear directions for me to frame the reading in my mind. The kicker? I had written it two weeks earlier. I was so close to the material, so buried in the facts and law that I was writing with too much presumed knowledge. Fortunately, it was a very early first draft – something I knew I was going to need to spend a fair amount of time on and had set aside a multi-week schedule to get it done.
Have another lawyer look over your writing – can they understand it without any knowledge of the case? Are they confused? Did they draw a different conclusion from the facts than you made in your argument? Back to the drawing board. Craft your writing so that there can be no conclusion other than the one you want. Taking the time to properly orient your writing for the reader is powerful and valuable advice.
Read the full article here:
Abrams, Douglas E., Effective Written Advocacy Before Generalist Judges: Advice from Recent Decisions (June, 01 2011). Precedent, Vol. 5, No. 2, pp. 17-19, Spring 2011; University of Missouri School of Law Legal Studies Research Paper No. 2011-14. Available at SSRN: http://ssrn.com/abstract=1856660
