View From The Bench by McKay Chauvin
What’s In Your Briefs?
The view from the bench is literally and figuratively different than the view from counsel table. Those of us whowere trial lawyers before we were trial judges, are confident that we would greatly benefit from that perspective should we ever get voted back into private practice. Each of us keeps a mental list of the things we, as judges, tell ourselves that we would never do (or do again) as lawyers. Nowhere is this more true than with respect to the inaptly and somewhat ironically named legal “brief”. In short, I think a legal brief should be. “Less” isn’t more if it isn’t enough, but “more” isn’t necessarily better … it’s just more, and “more” is as often as not too much.
It is a little known, and hardly believed, fact that judges actually read and are genuinely interested in what lawyers write. We are relying on the pleader to explain somewhere in the pleading exactly what we should do and why. However, themore we have to look, the less likely we are to find it. At some point, usually somewhere between pages 12 and 20, we lose hope …we lose interest …at which point whoever wrote what we are no longer reading usually loses. To the extent that it may be in the lawyer’s (and the lawyer’s client’s) best interest to figure out how to write briefer briefs, I offer the following view from the bench.
Lawyers should write for judges. Not for the lawyer’sclient … or their muse … or amusement … or for posterity.
That means resisting the temptation to write like an English major. Briefs are not novels, or even novellas. They do not require heroes, villains, plots or subplots, and neither counsel nor opposing counsel should ever appear asa character. A judge doesn’tneed to be entertained or emotionally engaged. A judge wants to be informed and educated. Great legal writing need not be great literature in order to be great. That being said,if and when the creative writing urge proves too much to resist and the lawyer feels compelled to shoot for the literary stars, that lawyer would do well to aim for Hemmingway and not Faulkner.
Finally, and perhaps most importantly, the average brief can be lightened considerably in volume and tone by removing the prickly preambles (e.g. “The Defendant would have you believe the absurdly ridiculous and entirely specious notion that …”) and snide asides (e.g. “I think Shakespeare was talking about the Plaintiff’s argument when he wrote, “it is a tale told by an idiot, full of sound and fury, signifying nothing”). These cutting remarks fall remarkably short of their mark andare nowhere near as much fun to read as they are to write. They are distracting. They are annoying. They are unwelcome. Time a lawyer spends explaining how and why (s)he should win, is time very well spent. Time spent railing against an opponent for having the audacity to argue theirside case, is time, paper, and a meaningful opportunity wasted.
I could go on and on but, in keeping with the theme of this theme, I am trying very hard not to. I’ll just say, in brief, that if lawyers want to help judges help them, then they should approach writing for litigation like they
should approach packing for vacation. They should fill their(suit)case with onlywhat they think they’re going to need, then go back through and take at least half of it out.
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