Legal Writing: How to Maintain Your Credibility

The following is from an article I did for the Illinois Bar Journal titled "Five Steps Towards Persuasive Writing." It's step two, maintain your credibility, and I was reminded of it this morning as I was outlining a memorandum in opposition to an opponent's motion:

The court will respond more favorably to your arguments if they think you are fair-minded and wise.  The basic rules are easy.  Present a cogent legal argument.  Don't misstate the facts or the law.  Be thorough in your research.  Always cite-check your case citations.          

Your credibility is also influenced by how seriously you take the arguments advanced by your opponent.  Any legal brief or memo that fails to address every point made by the other side is inherently flawed.  It's a rule that's often violated, especially when we're rushed.          

What about concessions?  It's often strategically wise—and an automatic credibility-booster—to state your opponent is right on points that don't matter to the end result.  Why do so many lawyers feel compelled to defend indefensible positions that aren't material?  Point out other reasons why you should win anyway.          

Credibility also has a stylistic component.  A common problem is overstatement, which will make the reader question every other forceful statement you make.  Example: Defendant contends Smith v. Jones is distinguishable, but nothing could be further from the truth.

Never come on too strong.

You'll find the other four points in the linked article.

Comments

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[Evan]

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[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]

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[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.