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.

  • 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.

  • 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.

  • 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.

  • Today, I discuss the second “P” in the P+P Principle. If you are wondering what the heck is that Principle, then read my prior posting. I explained all the juicy details in that posting, including why the text preceding a parenthetical determines the content of the parenthetical.

    The second “P” refers to the purpose for including a parenthetical with a citation. Like the preceding text, the purpose for using a parenthetical also determines what information belongs in the parenthetical. You may use parentheticals for various purposes, such as

  • I am sorry for my lack of postings in December. I was enjoying one of the non-financial benefits of being a professor—a long Christmas break! I am kicking off the new year with a series of postings on how to draft effective explanatory parentheticals for your citations in your motions and briefs. This post and the next one will focus on the P+P Principle (which I intentionally made ambiguous so you would continue reading).

  • Each major premise in your motions and briefs must be supported by authority. The initial cases that you find after running a Google search are probably not your best ones. (Yes, we know that you use Google to research, but we won’t tell your clients. But we will tell the ethics commission if you try to bill those research “costs,” which you would never do, of course.)

    So how should you select the best authority?

  • “The most important sentence in any article is the first one. If it doesn’t induce the reader to proceed to the next sentence, your article is dead.” Although William Zinsser was referring to writing in general, his statement applies with equal force to legal writing. You don’t want a “dead” motion (unless you represent a funeral home).

  • Professor Joi Montiel of Jones School of Law has published a great article on how an appellate brief can create an obstacle course for judges. Unlike our brave soldiers, judges dislike obstacles. Your brief should provide judges with a clear pathway to your conclusions. Professor Montiel identifies 10 obstacles (again, these are bad things).

1 2

Subscribe to e-Persuasion

Receive monthly emails on CLEs, discounts, and popular posts

Follow The Persuader

Receive each new posting in your inbox