The Perfect Brief Part 2 - Thinking Like a Judge

As we discussed last time, the more we stay within the bounds of judicial decorum and decency, the more likely we are to prevail. If we let ethics guide our brief-writing, the system wins, the profession wins, society wins, and our client is more likely to win. If being respectful and diligent in our briefs had no upside, we could not in good faith recommend it; but beneath any discussion about how to write a brief lies a dependable truth: Our approaching brief-writing with “fairness” in mind is much better for our clients.

Remember—Judges Are Human

Judges might have a professional code to follow and justice to dispense, but they’re still human, and, like the rest of us, they respond viscerally to irritating things, like lawyers who indulge in hyperbole and can’t stop tossing digs at opposing counsel or even the lower court. And, like the rest of us, they respond well to the lawyers who try to help them do their job, which is to be fair. Because our job is to provide our client with the best possible chance of winning, we are wise to signal the judge deciding our client’s fate that we are the “Fair Advocate.” But how do we do that?

Every Brief Is a Negotiation

Think of every brief as a negotiation, not with the other side, but with the judge. When we negotiate, we don’t use snide, strident language, and we don’t call people names; we don’t grossly exaggerate; and both sides must benefit. In this negotiation, we benefit by having the judge decide in our client’s favor; the judge benefits, first, because deciding for us is fair and logical and, second, because we show respect for the system, the bench, and even our opponent. Below, we offer several ways to help establish a tone of fairness and honesty in a brief. By itself, not one will persuade the judge to decide for us, but cumulatively, they move a judge to listen to us more carefully and closer to wanting to decide for us.

Here are five ways in your brief to let the judge know you are the “Fair Advocate”:

1. Treat Both Sides Equally: Don’t try to personalize your client, while de-humanizing your opponent’s client, by calling your client by name and the other side “the defendant.” Address both sides equally: “plaintiff” and “defendant,” or by their names, or by their roles.
2. Check the Hyperbole: Judges know that a lawyer has no case when he adopts a “shrill” tone. Evocative words like tyranny and phrases like run amuck might make our clients happy, but they cause judges to distrust us.
3. Avoid the Little Digs: Don’t use derogatory adverbs to open a sentence. Words like Unfortunately, Interestingly, Curiously, Conveniently, Surely, Incredibly, Amazingly, or any similar adverb, are little digs that send a message to the judge that we are not a “Fair Advocate.”
4. Drop the Rhetoric:  When we write inflammatory phrases like approaches the frivolous or borders on the laughable, we undermine our own credibility. These phrases are neither colorful nor clever, and judges inform us that when they see one, it tells them this about the lawyer’s case: He doesn’t have one.
5. Ignore the Bait: If our opponents write digs and hyperbole, judges notice, and it goes right into the negative column. If we respond, we surrender the high ground and find ourselves in the typical liar-liar-pants-on-fire-bite-me-up-yours-so’s-your-mother case that tries the patience of all judges.

Organize a Brief Simply

This might sound rudimentary, but it’s the first thing a judge sees, and it’s where she starts her opinion meter ticking, assessing us, our brief, our client, and our case: how we label each of the main sections of our brief. These labels are subliminal signs to a judge that she can rely on us. If we label them with more than one word, we risk sounding insincere and untrustworthy. Many lawyers adorn their fact statements with titles like “Overall Background of the Case,” which sounds to a judge suspiciously like there might be some facts in there, but also a lot of opinion, and judges don’t like lawyers’ opinions. We recommend you title each section with one clear word: INTRODUCTION, FACTS, ARGUMENT, CONCLUSION.