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August 31, 2005

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» "Legal Writing: How to Maintain Your Credibility" from Stark County Law Library Blawg
Evan Schaeffer posts: “The following is from an article I did for the Illinois Bar Journal titled "Five Steps Towards [Read More]

» Don't Mess With Judge Walton from SECURITIES LITIGATION WATCH
The PSLRA Nugget flags the interesting securities litigation opinion from Judge Reggie B. Walton of the U.S. District Court for the District of D.C. (Burman v. Phoenix Worldwide Industries, August 30, 2005). The opinion is interesting not for any secur... [Read More]

Comments

San Francisco lawyer

Hi, just came across your blog. I enjoyed it ...most informative.

I've been reviewing other legal blogs and I book marking the standouts.

Well, needless to say, I have bookmarked your blawg.

I also write a blawg. Actually, it's more of a collection of Internet Tech tips/observations to inform legal web site owners how to achieve improved search engine standings while avoiding the many Internet scams.

My blawg legal advice librar site. is still very much a work in progress. My legal directory San Diego attorneys site is the flagship of our 15 legal directory sites that cover California, Texas and Las Vegas.

Please visit and check them out if you have the time

FredN.

Nice blog-comment spam above. You can always tell when they don't mention anything specific to the blog entry. I hate them.

Evan

Fred: I got the same comment from him on another weblog. On that weblog, I deleted the comment. On this one, I just stripped out the links so the spamming won't work.

YGB

Just a comment on step 2. There are some situations where you simply may not be able to do this and it is better, in my experience to pick the important arguments and address those. The particular situation that comes to mind is in Federal Appellate practice before certain Courts of Appeals. One technique employed by experienced practictioners when writing for the appellant is to cram every single argument and every self-serving fact shading you can into the moving paper. Now, it usually t takes two sentences (or twice as many words) to address each argument sentence -- you must first id their argument and then explain why it just isn't so. But in the local FRAP rules of some courts, the appellant and appellee have the same page/word limit in the moving and opposition papers -- you simply can't address every argument and shading if the moving paper is densely packed enough. Inevitably, you must choose to ignore some arguments which the skilled appellant will identify in the reply as unaddressed. Appellee's counsel hopes, these are not arguments or fact shadings that are of any import to the appellate panel -- and they are, in my experience usually not of importance -- but one must learn to identify and focus on that which the appellate panel. Identifying those issues and giving clean and fair readings of the cases gain you credibility, not a slavish mechanical process of addressing each and every argument and fact shading.

YGB

Oh, and not incidentally, I really like you blog and have been following it for quite some time, EVEN THOUGH I don't have a blog of my own to advertise on your site. Go figure.

YGB

A couple final things (lawyers do like to hear themselves). I often like to think about what the judge's role will be in the entire exercise (this is at the distrtict court level). If the judge rules my way and produces a written opinion, then the judge will have to cite cases and facts in support. Have I provided the judge the proper ammunition/tools so that it is easy for them to do so? I want to provide argument sections in such a form that with as little effort as possible, the judge can take them and use them in an opinion. This is also the reason for the importance of credibility, particularly in characterizing cases -- there are likely a number of cases that only the judge's clerk will read -- I want such a fair reading of a case that the clerk (and ultimately the judge) will have no qualms about using my characterization in an opinion that may well be scrutinized by appellate courts) or at least, characterizations that are scrupuloously fair, so that if I have to make a bit of reach on a case to fit facts/etc., the clerk and judge will be comfortable that I am not overreaching.
The Second thing is about motions to compel. I believe different types of motions may require a different focus. In motions to compel, what I've experienced is taht the law usually plays a background role (there are exceptions of course) because the law is often well-known to the judge and is a matter of fairness balancing. Thus, the effective writing focusses on a compelling story of why you should prevail. Larding the brief with routine law citation to the detrement of the compelling presentation of the facts may well cause the judge to wonder if the facts are really on your side and may harm your chances of prevailing.
Credibility is built not just in papers, but at hearings, and in the way you shape the record through written correspondence. As part of persuasive brief writing, I draft each latter to opposing counsel as if it is an exhibit in a motion. The important "stuff" must appear in the first paragraphs (I wonder if any judge or clerk reads more than a couple of paragraphs into any exhibit correspondence).

Evan

YGB: Thanks much for your comments.

Michael Ausbrook

I have to disagree about a couple of things. First, it's really not true that that a brief that does not address every point made by the opposition is "inherently flawed." If you're addressing the other side's points, then the other side is defining the argument. As someone else in a book on brief-writing put it, briefs should, in fact, be like ships passing in the fog.

Second, not all arguments deserve respect simply because they are made. If the opposition has floated something preposterous, which is not infrequent in my practice, at least, sending it up should not be out of the question.

What's funny is how it's quite acceptable, in appellate practice, at least, to call the opposition's argument "risible"; but Lord help you and your lack of civility if you call it "laughable."

Going after the other lawyer may be beyond the pale; but going after the argument hammer and tongs should never be.

chloe tolson

I am a paralegal student, writing my first brief. Thank you very much for this information. I was worried that my brief was worded too simply, but it is nice to see that clear and concise is still appropriate, even in the legal field.

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