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THE INTRODUCTION OF A LEGAL BRIEF is the most important part. Working for a California Supreme Court Justice, a federal district judge, and a bevy of administrative law judges at San Francisco’s Immigration Court, taught me how legal writing can lead the Court toward the result you seek. And I also learned how poor legal writing can horribly undermine your case. Now, as the partner in my law firm responsible for generating most written work product, I practice my own preaching daily. Here are a few tips to employ in your next legal brief.
1. Clearly state what you seek
The first sentence of your brief should state what you seek. Hit the court between the eyes. For example, suppose you are seeking summary judgment for a corporate defendant. Your first sentence should be something like this:
- The defendant, Betawaze, Inc., requests that the Court enter summary judgment in its favor, and against the plaintiff, on each claim alleged in her June 1, 2017 amended complaint.
If you are opposing a discovery motion, then lead with this:
- The plaintiff, Tom Collins, asks the Court to deny the defendant’s motion to compel further, supplemental discovery responses.
Pleading rules are not uniform: some rules require an opening paragraph titled “Relief Requested,” or something similar. But make no mistake: whatever its name, the first few sentences of a brief are crucial. Never (ever!) waste the first sentence of your brief with nonsense of this kind:
- COMES NOW, the plaintiff, by her undersigned counsel, before this Court, to state the following by motion.
That tired legalese is useless garbage that lends nothing to an attorney’s case.
2. Briefly summarize the case
Trial judges and their clerks (provided they have clerks) have little time to read pleadings. A quick synopsis of the relevant facts is tremendously helpful and will keep the reader focused. After stating clearly what you seek, briefly summarize your facts with a few sentences. Here are a few examples:
- The plaintiff, Mr. Johnson, filed this employment discrimination claim, without sufficient evidence, claiming his July 21, 2016 termination was in retaliation for notifying a supervisor of an allegedly unlawful practice. Betawaze, however, terminated Mr. Johnson, not for any allegedly unlawful practice, but because he failed to comply with clear, known policy. It’s a regrettable event, but Betawaze uniformly enforces its employment policies.
- Mr. Collins filed this trademark infringement case after the defendant, a notable retailer, published his federally registered mark on its website during a 2016 Cyber Monday advertising campaign. During discovery, Mr. Collins thoroughly answered six different discovery sets and has produced more than 12,000 pages of responsive material. Now the defendant, who still has yet to answer much of Mr. Collins’ discovery requests, demands more, having filed its motion to compel still further answers to document requests in response to which Mr. Collins has already produced material.
Load your sentences with helpful facts, peppered with argument when it's not distracting, and always make each word in each sentence count.
3. State why you get what you want
Finally, direct the Court to the key bases supporting the request you seek. Your statement should include what you seek, followed by the word “because,” followed by the essential reason(s) you are entitled to relief. Like before, here are two examples:
- Betawaze is entitled to summary judgment on Mr. Johnson’s retaliation claim because the undisputed evidence shows he did not notify any Betawaze employee, including his supervisor, of what he claims is unlawful employment practices until after his July 21, 2016 termination. Under applicable law, an employee who does not engage in allegedly protected conduct until after his termination cannot, as a matter of law and fact, succeed on a retaliation claim.
- Mr. Collins is entitled to have the defendant’s motion to compel denied for three reasons: (1) because Mr. Collins has already supplied the defendant with a suitable affirmation explaining his search efforts; explaining he discovered no other responsive documents; and explaining why he discovered no other responsive documents; (2) because granting the defendant’s motion would permit the defendant, without good cause, to exceed a reasonable number of allowable document requests; and (3) because Mr. Collins has already produced to the defendant more than 12,000 pages of responsive documents, which is all he has in his possession, custody, and control.
After stating why you should get what you seek, simply button the introduction with a restatement of the request you seek: “Accordingly, Betawaze is entitled to summary judgment on the plaintiff’s retaliation claim.” Of course, be mindful to stay creative: always use “sticky words” - words that are unique, but not archaic or unknown, such as “plaintiff’s tardy claims should be dismissed because…” or “defendant’s over-caffeinated motion fails because…” - and use flowing, engaging prose. A well-written, entertaining brief is more likely to persuade than a boring cut-and-paste job filled with UPPERCASE words (oooooo, uppercase words are important!) and cheeky, below-the-belt jabs at opposing counsel.
Follow these tips and hopefully you’ll see your winning percentage on your written briefs increase. And if you want help revising a brief, feel free to email me. I’m always happy to crack wise about legal writing.
Trent Lattapractices in California and Washington and is a partner at McDougald Law Group in Seattle. When not practicing his legal writing, he is humiliating himself during stand-up sets or avoiding crotch kicks from his oblivious six and three-year-old daughters. He can be reached at TLatta@McDougaldLaw.com.