Tips From a Former Law Clerk: How to Write Persuasively Without Coming Unhinged
As lawyers, we sometimes get wrapped up in a case and forget to take a step back prior to submitting court filings. What can happen as a result, particularly in contentious cases, is that sarcasm and petty remarks somehow find their way into our briefs. But avoiding the temptation to pull out the boxing gloves can help you build credibility with the court and bolster your reputation among other lawyers. With that in mind, the following list—although nonexhaustive—is intended to offer perspective for young lawyers and seasoned lawyers alike trying to strike the difficult balance of acting as zealous advocates for their clients and maintaining civility when writing for the courts. After all, while oral advocacy is important and can help clarify complex issues, most judges will tell you that cases are typically won on the briefs.
- Avoid disparaging or questioning the motives of the opposing party or opposing counsel.
This should be a given, but folks at the court see it more often than one would think. Judges have little patience for lawyers attacking each other. Throwing unnecessary jabs at the other side only serves to weaken your position, and it makes you look petty. You can respectfully disagree with opposing counsel’s argument without calling that person a liar or attributing some improper motive behind the argument. Even if the lawyer on the other side “starts it,” don’t feel like you must respond at the risk of losing your case. Focusing on the legal issues and staying above the fray will not make you appear weak. In fact, the opposite is true. By sticking to your legal arguments and the factual issues at hand, you convey confidence in your client’s position.
- Be respectful and fair to the lower court on appeal.
Whether appealing from a trial court’s ruling or seeking certiorari to appeal the court of appeals’ decision, lawyers should be respectful and fair when describing the errors of the lower court. As a general rule, avoid calling a judge by name in your briefs. Instead, refer to the lower court by stating “the circuit court erred” or “the family court erred” or “the court of appeals erred” in its finding. Further, do not read something into a judge’s ruling that is not there. Great minds can disagree as to the merits of various arguments, and the appellate court is simply trying to get it right. If you believe you are correct, then trust in appellate review and simply make your argument. You don’t have to make two courts mad in the process by incorporating unnecessary language that calls out the lower court. Of course, this rule also applies to situations in which another trial judge has already ruled upon an issue in the case and you are discussing that ruling in a subsequent brief submitted to another judge.
- Try to limit the use of unnecessary adverbs.
Steven King once mused, “The road to hell is paved with adverbs.” Adverbs rarely, if ever, add meaning to a sentence in formal legal writing. Lawyers often use adverbs when they are trying to reinforce a point or dismiss the other side’s argument. In practice, however, the use of gratuitous adverbs detracts from your argument and makes it seem weaker. Generally speaking, try to avoid using the words “obviously,” “clearly,” and “absolutely” in a written brief. If something truly was clear or obvious, then it would not be a matter of dispute before the court. Also, how many things in the law are absolute? Rather than say something is clear, show the court that it is. The following examples of a concluding sentence are instructive. I’ll leave it for you to decide which one is more effective.
- The plaintiff has completely failed to meet his burden of proof because he has put forth absolutely zero evidence to demonstrate the defendant had any knowledge of some alleged “substance” on the floor and, therefore, the defendant is clearly entitled to summary judgment on this baseless claim.
- Because the plaintiff failed to demonstrate the defendant had actual or constructive notice of the purported substance, the court should grant the defendant’s motion for summary judgment.
- Consider whether emphasis is necessary and, if so, use only one form of it.
Few things are more frustrating—at least from a law clerk’s perspective—than lawyers employing multiple methods of emphasis to make what, in their view, is an important point. Always remember that legal writing for the courts is supposed to be formal. WRITING LIKE THIS MAKES IT SEEM LIKE YOU ARE SCREAMING FROM THE PAGE!! When you truly have a “drop the mic” argument, it will speak for itself and not require the addition of any emphasis. You can trust that the judges and their staff will pick up on your important point without the superfluous ink. If, however, you decide to use emphasis, then you should only underline or italicize the relevant text, depending upon which style you prefer. Each is perfectly acceptable per The Bluebook and other style and usage manuals, but do not use them together.
- Get to the point.
Always remember that the imposition of page limits on court filings was meant to provide a ceiling, not a target. Most judges prefer succinct, coherent arguments that help them address the important and dispositive issues in the case. Wasting time in the weeds on insignificant points or opposing counsel’s trivial remarks does not assist your client’s position. Similarly, writing a fifty-page brief ridden with fluff and unnecessary arguments does not impress the court. Judges and their staff have heavy caseloads and review many briefs and records each day. Thus, if you want your writing to stand out in a good way, be sure to spend more time formulating a clear and concise argument for your client than dissecting every sentence of the other side’s position.
- Observe the 24-hour rule.
This is arguably the most important tip, and it applies to more than just court filings. We have all received the email that gets us riled up and makes us want to fire off an equally witty, sarcastic, and tough response. But when is that ever productive? What applies in your daily life as a lawyer should certainly apply in the context of formal writing you intend to submit to the court on behalf of your client. The best practice, if time permits, is to put down your brief for twenty-four hours, and review and edit it before filing with the court. Not only will you catch typographical and other substantive errors, but you will also remove the zingers you thought sounded so great the day before. Even if you are cutting it close on a deadline, you should always give your writing one more quick review prior to submitting it to the court.
So the next time another lawyer tries to drag you down into the mud, remember these tips and resist the urge to respond in kind. Rising above the temptation is in your client’s best interest, and it will benefit you professionally in the long run. Moreover, it is consistent with the oath of civility we all took to practice law in this state.
Lisle Traywick is an associate at Sowell Gray Stepp & Laffitte, LLC, where he focuses his practice on appellate advocacy and civil litigation.
Originally published in the South Carolina Young Lawyer newsletter (December 2016)