Tuesday, November 10, 2015
In a recent episode of the Legal Talk Network podcast Lawyer 2 Lawyer, hosts J. Craig Williams and Bob Ambrogi interviewed Judge Alex Kozinski from the United States Court of Appeals for The Ninth Circuit and Judge Richard Kopf from the U.S. District Court, District of Nebraska, to get the judges’ thoughts on the essential elements that go into persuasive legal writing.
If you have about half an hour, you should listen to the whole interview, available HERE via Soundcloud. If you don’t have time to listen to the whole interview, or in the meantime, here are a few of the highlights:
One interesting perspective about the quality of brief-writing that the court comes from Judge Kozinski’s recognition at roughly the 6:30 mark of the interview, where he noted that the court realizes that lawyers are busy. Judge Kozinski noted that the court recognizes that staffing and economic factors certainly play a role in the quality of the briefs submitted by attorneys, and that quality is not solely a function of the lawyers’ abilities. He noted, for example, that staffing plays a role; larger firms with larger clients with larger budgets can devote more resources, including reviewers and editors, to fine tuning and polishing briefs than a solo practitioner representing an individual without deep pockets. He noted that sometimes the quality of briefs submitted to the court are not necessarily representative of failings of the individual lawyers, but are a matter of economic feasibility. Courts recognize that, and courts have their own staff to work on the case and provide additional assistance to the court in reaching the correct result.
At roughly 5:30 into the interview, Judge Kopf advises that attorneys writing briefs try to emulate what one might read in a “really well-written newspaper.” He identifies the three key attributes of effective brief-writing as that it be simple, precise, and readable.
Simplicity is really important to Judge Kopf and, in my experience, most judges. They are busy and are always trying to focus in on the essential aspects of the case to reach a timely and accurate resolution, usually in the most direct way possible. Judge Kopf explains starting at roughly the 11:00 mark of the interview that a litigant who spends a little time narrowing in and simplifying the issue right at the outset of a brief does the court a significant favor. He compares an example wherein a litigant starts a brief by noting that it is in support of “a motion for summary judgment” with one noting that it is in support of “a motion for summary judgment, limited to the issue of qualified immunity.” Simplifying and narrowing the focus at the outset helps the court to understand immediately where the rest of the discussion is going to go.
In cases involving complex technical issues or areas of the law, simplicity obviously becomes all the more important. In class, I always stress to my students the importance of explaining the issues, the law, and the facts in the simplest and most straightforward way possible. I always tell my students that there is little risk of offending any judge by making something seem “too simple,” but there is great risk of a judge not fully understanding technical issues that are not simplified and explained. Judge Kopf echoes this thought at roughly the 30:15 mark of the interview by noting that a litigant writing a brief should “not assume [the judge is] smart.” Judge Kopf advises at roughly the 29:25 mark of the interview that a litigant writing a brief addressing a technical issue have “a real human being” read the brief before it is submitted – someone with no background in that technical area. If that person cannot understand it, the writer needs to reevaluate.
The advice of seeking review by a reader who is not technically trained in the particular subject matter of the brief was also echoed by Judge Kozinski in his final thoughts, at roughly the 31:20 mark of the interview. Judge Kozinski urged writers to ask themselves if they could explain the arguments presented in their briefs to an educated, smart person who is not an expert, in plain language. If not, the writer needs to go back and rethink the argument and rethink how to present it. As Judge Kozinski put it, “writing is thinking.”