© 2013 The Texas Lawbook.
By U.S. District Judge Barbara Lynn and David Shank
Special Contributing Writers for The Texas Lawbook
A lawyer looking to hone her skills will find no shortage of practice guides giving advice on everything from how to draft a subpoena to how to pick a jury.
We do not intend to add to that literature here. From our perspectives as a judge and a former law clerk, we write to identify specific ways lawyers can improve when attempting to persuade the court. In doing so, we focus on the two main vehicles through which lawyers attempt to persuade the court: legal writing and oral argument.
Writing
A trial lawyer’s core function is to persuade, and her primary tool for doing so is written argument. This is especially true in federal court, where more often than not motions are argued entirely on paper.
No lawyer can be expected to turn out eloquent work day after day, and some subjects simply don’t lend themselves to stirring prose (think routine discovery motions). Nevertheless, adherence to these three characteristics can make even mundane arguments enjoyable (or at least easy) to read. Conversely, failure in any one of them can scuttle an opportunity to persuade the court.
Avoid Typos
Carefully editing written work requires little more than some time and attention to detail. Yet, lawyers constantly submit papers laden with typographical and grammatical errors. To be sure, even the meticulous editor is guilty of the occasional typo. And some aspects of grammar and usage are matters of preference. But a single error within an otherwise impeccable brief is rare.
This is wrong. At best, careless mistakes merely distract the reader (i.e., the court) from your argument and damage your credibility, thereby undermining your ability to persuade. At worst, typos can cause direct negative consequences for you and your client. For instance, one lawyer’s typos were so egregious that a magistrate judge docked his fee award by cutting his hourly rate in half.
Even after the opposition highlighted the attorney’s errors in opposing the fee request, the attorney responded with more sloppy work, arguing in reply that “had the Defendants not tired [sic] to paper Plaintiff’s counsel to death, some type [sic] would not have occurred.” Devore v. City of Philadelphia, No. Civ.A. 00-3598, 2004 WL 414085, at *3 (E.D. Pa. Feb. 20 2004). The magistrate judge found such errors “careless, to the point of disrespectful.”
We can’t say we disagree. Typos are among the most common deficiencies in papers submitted to chambers, but they are also the easiest to avoid. A lawyer who refuses to give his work a thorough once-over reflects apathy towards the court’s work and, frankly, his client’s cause.
Plain English
Editing for careless errors is not a cure-all for unpersuasive writing. Rather, submitting typo-free work is equivalent to simply showing up for the game. And unlike parents, clients are rarely impressed by attendance awards. To persuade the court, you must clearly and concisely explain what you want the court to do and why the court should do it.
This is most effectively done by writing in plain English.
Several comprehensive guides have been written to help lawyers improve their writing by using plain English. Common advice includes replacing legalese with commonly used words, omitting superfluous words (especially introductory phrases), and avoiding the passive voice by using so-called base verbs. We believe this is all good advice, and we recommend that every lawyer read and periodically re-read at least one of these guides cover to cover.
However, there is one technique of plain-English writing that is particularly ignored in work submitted to chambers: breaking complex points into several short sentences. This practice is most helpful when summarizing your argument or factual narrative in an introduction.
For example, consider this excerpt from the first paragraph of Justice Thomas’s recent dissent in Amgen, Inc. v. Connecticut Retirement Plans & Trust Funds:
“Without demonstrating materiality at certification, plaintiffs cannot establish Basic’s fraud-on-the-market presumption. Without proof of fraud on the market, plaintiffs cannot show that otherwise individualized questions of reliance will [not] predominate, as required by Rule 23(b)(3). And without satisfying Rule 23(b)(3), class certification is improper. Fraud on the market is thus a condition precedent to class certification, without which individualized questions of reliance will defeat certification.” 133 S.Ct. 1184, 1206 (2013).
In four relatively short sentences, Justice Thomas effectively explained the basic legal argument underlying his dissent (about which we express no opinion). Each sentence advances a single main point. This not only makes for more pleasant reading but also reinforces the logical structure of the argument.
In fact, separating an argument into its component parts may reveal logical errors or weaknesses that you might otherwise have missed. In that way, clarifying your writing can clarify your thinking, which will almost always increase your persuasiveness.
Tone
Even a typo-free, plainly written brief can lose its persuasive punch if it employs an inappropriate tone. Powerful language can and should be used in legal writing. A sterile brief is almost as bad as an overly aggressive one. Argue zealously but not combatively. Do not trade bombast for clarity and concision.
For instance, attempting to highlight important facts by showering them with over-the-top adjectives and adverbs will dilute rather than enhance their potency. Moreover, never let a desire to dramatize lead you to exaggerate the record or the law, as credibility is indispensable to an advocate’s ability to persuade. Above all, maintain proper respect for the trial court, even on appeal. Failure to do so can have highly embarrassing consequences.
In response to a particularly disrespectful (not to mention typo-ridden) attack on a magistrate judge’s ruling, the Fifth Circuit, in Sanches v. Carrollton-Farmers Branch Indep. Sch. Dist., 647 F.3d 156, 172 (5th Cir. 2011), showed no qualms in voicing its displeasure:
“These sentences are so poorly written that it is difficult to decipher what the attorneys mean, but any plausible reading is troubling, and the quoted passage is an unjustified and most unprofessional and disrespectful attack on the judicial process in general and the magistrate judge assignment here in particular. [The attorneys’ argument] may be a suggestion that [the magistrate judge] is incompetent. It might be an assertion that all federal magistrate judges are incompetent. It could be an allegation that only Article III judges are competent. Or it may only mean that [the magistrate judge’s] decisions in this case are incompetent, a proposition that is absurd in light of the correctness of his impressive rulings. Under any of these possible readings, the attorneys’ attack on [the magistrate judge]’s decisionmaking is reprehensible.
Oral Argument
Oral argument is another area of practice in which the view from chambers can be particularly helpful. Like written briefs, oral arguments are delivered by lawyers directly to the court in an attempt to convince it to take or refrain from taking some action. And as with legal writing, there is no shortage of advice on how to present oral argument effectively. From our perspective, however, there are a few areas of oral argument practice that warrant mention.
PowerPoint Presentations
PowerPoint presentations have become ubiquitous in oral argument. When used correctly, they are powerful visual aids that drive home important aspects of your presentation. Used incorrectly, they can cause interruptions, distract from your argument, and hinder your ability to persuade the court.
As an initial matter, courts differ regarding the use of PowerPoint presentations during oral argument. Before spending time and money preparing a flashy presentation, first determine the preferences of the judge to whom you will be arguing by checking the applicable local rules and the judge’s individual requirements for guidance. If the judge allows calls to chambers, call and ask what the judge prefers. If the court allows lawyers to come in prior to argument and test the equipment, do so. Nothing takes the wind out of an oral argument like technical difficulties. If none of these options prove informative, go watch an oral argument in the judge’s courtroom.
If you do use a PowerPoint, always bear in mind that the slides are visual aids. As such, use them only when a visual depiction will clarify or emphasize an idea in a way that your oral presentation or written brief cannot. For example, a timeline or animated flowchart might be helpful in explaining a complicated chronology or causal connection. Likewise, images of critical parts of a document or other evidence, when used sparingly, can emphasize their importance. But use only the slides you need. When you don’t need them, keep the screen black. In short, most oral arguments don’t require a PowerPoint, and those that do rarely require more than a few slides.
No matter how many slides you prepare, giving the court a paper copy of your presentation before you begin will provide a useful way for the judge to take notes. That said, if you give the judge copies of your slides at the outset, the judge will surely read them (and read ahead) during your argument, which means the judge will not be looking at you. Consider, then, whether an on-screen presentation is necessary at all.
Questions from the Bench
The most productive oral arguments are those that resemble a cordial (though somewhat formal) conversation between the judge and the parties. Unlike the jury at trial, the judge at oral argument is not a passive audience. And that is a good thing. Every question or comment from the court is a window into the judge’s thinking. Too often, however, counsel treat questions from the bench as roadblocks to their oratory. This is a drastic error.
Understanding and answering the judge’s questions is the best way to persuade the court at oral argument. Answer the questions directly, if you can. Even if you think the question misses the point, answer it first and then explain why the answer shouldn’t change the outcome. If you don’t know the answer, say so. Don’t guess. If you later realize an answer you have given is wrong, correct it immediately.
Pick the Right Lawyer
Finally, pick the right lawyer to deliver oral argument. “Right” is not synonymous with “most senior.” To the contrary, the right lawyer for oral argument is usually the lawyer most familiar with the facts and the law at issue, and the lawyer most familiar with the facts and the law is more often than not the junior lawyer who read the documents and briefed the motion.
Despite this seemingly obvious notion, senior lawyers (or more likely their clients) apparently continue to believe that the court will be insulted or otherwise react negatively if a junior lawyer appears to argue a motion. Such concerns are misplaced, and some courts are taking action to counteract them. For instance, Judge Lynn has made the following provision a part of her standard scheduling order:
“The Court is aware of a trend today in which fewer cases go to trial, and in which there are generally fewer speaking or “stand-up” opportunities in court, particularly for young lawyers (i.e., lawyers practicing for less than seven years). The Court strongly encourages litigants to be mindful of opportunities for young lawyers to conduct hearings before the Court, particularly for motions where the young lawyer drafted or contributed significantly to the underlying motion or response. In those instances where the Court is inclined to rule on the papers, a representation that the argument would be handled by a young lawyer will weigh in favor of holding a hearing. The Court understands that there may be circumstances where having a young lawyer handle a hearing might not be appropriate—such as where no young lawyers were involved in drafting the motion, or where the motion might be dispositive in a “bet-the-company” type case. Even so, the Court believes it is crucial to provide substantive speaking opportunities to young lawyers, and that the benefits of doing so will accrue to
young lawyers, to clients, and to the profession generally. Thus, the Court encourages all lawyers practicing before it to keep this goal in mind.”
Hopefully, provisions like these will give senior lawyers the confidence (and perhaps the cover from clients) to sit back while their more junior (and often better prepared) colleagues stand up and do their best to persuade the court.
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Verbal persuasion—whether through written briefs or oral argument—is a trial lawyer’s stock-in-trade. In our view—the view from chambers—a persuasive brief is typo-free, plainly written, and respectful (but not sterile). Likewise, lawyers can improve their persuasiveness at oral argument by being judicious in their use of PowerPoint presentations, listening and responding to the court’s questions, and eschewing the knee-jerk preference for more senior advocates.
The Honorable Barbara Lynn is a U.S. District Judge in the Northern District of Texas and David D. Shank is a lawyer at Susman Godfrey in Dallas.
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