R+W Legal Consultants

Research + Writing Tools for Today's Litigators

  • Judge Diane Sykes of the Seventh Circuit has drafted a good article on writing appellate briefs. If you want any chance of winning on appeal—and getting paid by your client—you should heed her advice. I have summarized her advice and added additional tips.

  • Although Professor Hazelwood of the University of Kentucky does not resolve the continuing debate between citations in the text or in footnotes, she has drafted a practical article on citing authority. Professor Hazelwood discusses four ways to unclutter your legal writing.

  • You should avoid block quoting rules in your motions and briefs. Any lawyer or law student can block quote authority; it takes no talent. By including lengthy quotations in your writing, you imply that you were too lazy to paraphrase the quoted material—or, worse, that you did not understand it. Judge Kozinski of the Ninth Circuit admits that he does not even read block quotations.

  • I recently found a good posting at Lady (Legal) Writer that compares and contrasts the briefs from the Hobby Lobby case. Two well-known lawyers drafted the briefs—Paul Clement represented Hobby Lobby and Donald Verrilli represented the Department of Health and Human Services (“HHS”). Recall that the issue was whether the contraception mandate violated the Religious Freedom Restoration Act.

  • When drafting an answer to a civil complaint, you should assert all relevant affirmative defenses. If you don’t, the defense is usually waived in federal court and many state courts. Of course, waiving a relevant defense may subject you to an ethical complaint or a malpractice claim, or both.

    One good method to determine which affirmative defenses to raise is to categorize the available defenses. I have listed nine categories below, as well as common affirmative defenses for each category.

  • In litigation, you have to persuade judges that your client’s position is correct, but don’t forget about the gatekeepers. Your motions and briefs will probably be reviewed by a law clerk before it reaches the judge’s desk. I have spoken with several federal law clerks, and they told me that they have reviewed many motions and briefs where it appeared that the attorneys didn’t care whether their clients prevailed. I didn’t realize that attorneys would prefer to lose—not win—their case. If your goal is to lose your motion or brief, this sarcastic article is for you.

  • I tell my law students that they need to carefully proofread every document that they submit to a court or supervisor. I explain that attorneys lose credibility when their writings contain typos and other grammar mistakes.

  • You probably want to know how to write well—or at least decently. (If you don’t, then I hope that you can hire somebody who can write.) An article by Michael Bess of Winston & Strawn should help. His article offers 12 tips for writing better.

  • Professor Judith Fischer has drafted a great article on how to transform dull writing into exciting writing (to the extent that legal writing can be exciting). You should follow her advice if your goal is to keep your reader awake.

  • CLE on Legal Writing

    What should you do when your opponent cites authority in a motion or brief that appears directly on point? Panic. Actually, you have a better option—read my article on countering adverse authority. My article at the Lawyerist.com identifies six ways to refute adverse authority. If all six methods are inapplicable and the adverse authority is binding on a key issue, you are in trouble. Consider settling your claims.

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