Tuesday, May 17, 2011
A recent bar-journal article by Michael A. Greene, an Oregon practitioner and judge pro tem, offers twelve steps for writing “judge-friendly” briefs. In addition to urging lawyers to write in plain, direct English, Greene suggests including an alternative to the preferred result, because a fallback position may aid the court.
I do disagree with two of Greene’s suggestions. One is to place citations in footnotes. In that running controversy, I come down on the side of citing in the text, which is the accepted practice in most legal writing. As a wag once said, if humans were supposed to write footnotes, our eyes would have been placed vertically instead of horizontally. But I agree with Greene’s other recommendations about citations, including to cite only the most significant cases and to focus on the leading case.
Greene also suggests using the present tense. He doesn’t give examples of how this would play out, but if he means putting past events in the present tense, I strongly disagree. If the injury in a precedent case occurred five years ago, it would be too informal and may even be misleading to write, “Then the plaintiff slips on a banana peel.” (Yes, this post is written in the present tense. My reasons: a blog post is less formal than a brief, and Greene’s article is quite recent.)
The article is worth a read and may spark some useful discussion.