Bloomberg Law
December 6, 2016, 7:02 PM UTC

Write Softly and Carry a Big Stick (Perspective)

Editor’s Note: The author of this post is a Boston-based litigator.

When I was a judicial clerk, the volume of documents my judge had to digest astounded me. Stacks constantly consumed her bench. Motions, briefs, massive appendices of exhibits.

My judge was not unique. Judges (and clerks) in busy trial courts regularly bemoan the pitiless piles of paper that confront them daily.

As difficult as this circumstance is for courts, it presents a greater challenge for lawyers: How to get the court’s attention, and clearly convey your case, amidst the cacophony.

Many attorneys respond by putting their writing on steroids. More words. More argument. More stridency. Points for emphasis get triple treatment – underlined, bolded, and italicized – while every action by an opponent earns an adverb (“baselessly,” “frivolously,” “disingenuously”).

The problem is every other lawyer is doing the same thing. Those piles of paper filling the judge’s chambers become a mob of preschoolers, waving their arms and shouting simultaneously about their own insufferable injustices. The louder each shouts, the less the adult — or judge — is apt to listen.

The trick is to remember that you are not out to swamp the court’s attention. Your goal is to capture it. That requires being clear, direct, succinct, and compelling.

That does not mean that all court filings need to be short. Every written argument needs to cover the bases. It needs to be complete and accurate. It needs to be factually and legally supported, and to make a record.

But a court filing should be no longer than necessary. Don’t spend pages on a point that only warrants a paragraph, or a paragraph on a point that only needs a sentence. Don’t state in the text what fits in a footnote, or include a footnote that, really, adds nothing.

Textual examination of precedent can be sparing. String citations and parentheticals can convey that — of course — the overwhelming weight and volume of authority is on your side.

Perhaps most importantly, the golden rule of fifth-grade essay writing still holds: Show, don’t tell. Don’t just repeatedly tell the judge (in underlined, bold, and italicized text) how important your motion is, or how great the inequity your client faces. Show the court why it should give you what you want.

And do so as artfully — not loudly — as possible. Present a poem while the other side dictates the dictionary. The court will be more likely to digest your arguments, and thus be properly prepped to agree with you.

If nothing else, the judge will be thankful for your effort. So will her clerk.

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