Writing for 21st Century Judges
by Jadd F. Masso
Good writing is closely tailored to its audience and medium. Modern judges must analyze voluminous filings quickly, and often in a digital format. Yet many litigators do not let these considerations guide them when writing motions and briefs. We burden busy judges with archaic style and legalese, lengthy and disorganized text, and academic-style footnotes. Is this really the way to convince a judge to take our side?
I recently surveyed a number of local judges about what they love and hate about the writing they see in their courts. I also queried them about how they analyze filings to see how we, as lawyers, can better present information and argument to them. In the feedback I received, two themes came up repeatedly:
· Most of us write way too much.
· Case files are electronic. We can help our judges (and ourselves) by making the best of the new medium rather than ignoring it.
Writing for Busy Judges
The #1 tip from trial and appellate judges alike? Be concise. According to one trial judge, most lawyers “just have too much text” in their documents. If an argument can be made in a sentence instead of a paragraph, why waste the judge’s time with more? Writing too much can also bury your best point, making it less likely the judge will see it.
In addition to brevity, judges also suggested the following:
· State in the first sentence of a motion the relief you are requesting and why.
· In lengthy documents (more than 10 pages), start with a summary of the argument to give a roadmap of what lies ahead. A carefully drafted table of contents can do this, too.
· Use headings. Break up the text and “signpost” your argument frequently.
· At the end of a motion, state again the exact relief requested. And make sure your argument supports it.
· Write in plain English. Eliminate legalese and unnecessary archaic phrases.
· Judges know the standard for summary judgment and other common legal standards. Before reciting black-letter law, consider its necessity. Do not give the judge a reason to skip portions of your document.
· Do not use footnotes for any text you want the judge to read.
· Give thought to what you do with exhibits:
o Incorporate important text, pictures, or diagrams into the main document. Use this sparingly, for information the judge must see.
o Attach only relevant excerpts of documents. Use highlighting (especially on cases and transcripts) to show the judge where to look. Attaching voluminous evidence without directing the court to relevant portions will not preserve error for appeal.
o For paper courtesy copies, use tabs to help the judge find your exhibits. Again, use highlighting to direct the judge’s attention.
Making the Most of Electronic Documents
Electronic filing in Texas courts will soon become mandatory. In Dallas County and many other jurisdictions, paper files no longer exist. Courts only receive PDFs of filings, regardless of how you file the original document.
Many judges report reading more filings on computer screens and less on paper. Even judges who prefer paper acknowledge they will likely review more documents “on screen” in the future.
The switch to electronic documents, though not painless, presents opportunities for litigators to improve the way we present arguments in writing. Here are a few ways to put your best foot forward:
· File everything electronically. Paper filings are scanned and thrown away; courts receive only a PDF of your document. Scanned text can be blurry and difficult to read. In Dallas County, documents scanned by the clerk go to the courts as single-page PDFs, making review even more tedious. Filing electronically gets the judge the best possible version of your document.
· Do not file scanned documents unless you must. “Native” PDFs are clearer than scanned documents and are text-searchable.
· Use bookmarks to help the judge navigate within lengthy documents. Many appellate jurists consider bookmarks mandatory. Trial judges are learning to love them too.
· Use hyperlinks to attached exhibits or cases. Judges want to look at the evidence to make sure it actually supports the propositions in the motion. Make it easy with a hyperlink that takes them directly to the page you cite.
· Avoid footnotes. (See above.)
As advocates, it is our job to provide the judge the information he or she needs to decide an issue in our favor. The easier we can make that information to digest, the more likely our success. As courts evolve to meet the time and technological demands put on them, so must we evolve with them.
Jadd F. Masso is partner at Strasburger & Price, LLP. He can be contacted at firstname.lastname@example.org.