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(323) 652-9451I last wrote about a recent presentation made to my office by a retired judge, “Practical Advice and Perspectives From the Bench.” While I found it most compelling (disturbing) to learn that many (most?) jurists in Los Angeles Superior Court, have a policy of denying even meritorious motions for summary judgment, the judge also offered several items of valuable advice. While much of this will be familiar to lawyers who regularly appear in court, it is all useful and some of us, myself included, benefit from the occasional reminder. So, in no particular order, here are some of his more valuable insights and suggestions:
1. Never, ever, ever preface any argument to any judge using “With all due respect . . .” This conveys the opposite, essentially, “You, Judge, are a moron, incapable of understanding the most basic legal concept . . .”
2. Do not give equal time and/or space to weaker arguments. This dilutes the stronger arguments. Always lead with your best argument.
3. Avoid repetition. In the law and motion context, do not repeat arguments from your client’s motion in your reply. And don’t orally repeat the argument again during the hearing.
4. Don’t argue when the tentative is in your favor or you’re otherwise winning. Sit down and shut up. Don’t snatch defeat from the jaws of victory.
5. Always give pin-cites (i.e., to the specific page within an opinion). While this is how I was trained and how I practice, I would not have guessed pin-cites were so important to judges (and research attorneys). The judge said his practice was always to look up cases lacking pin-cites and 50% of the time the case did not stand for the cited proposition.
6. Refrain from petty complaints about opposing counsel. The judge hears this all day long and you’re not furthering your cause, even if you’re 100% correct.
7. When you appear on a multi-party case, take the time to orient the judge as to who the parties are, how they fit together in the controversy. We apparently have “no idea” how confusing and disorienting it is to the judge when five different sets of lawyers appear on a case.
Again, many of these are either common sense or things most of us already know. But, coming as they did from a retired judge, I thought it would be useful to share them.
Few would argue with the suggestion that a crucial skill for any lawyer who makes a living helping clients resolve disputes is the ability to persuade. Anybody can look up a case. And, while novel arguments or clever strategies can enjoy a certain symmetrical beauty, the ability to persuade, to sell, is ultimately what separates a good or great lawyer from the merely adequate. To this premise, I would add that the ability to write, to string together sentences in a clear, articulate and persuasive manner, is the most crucial skill of all and one clients should absolutely insist upon.
Why is writing such a critical skill to our trade? Conceptually, persuasive writing doesn’t just require a command of language, it compels organization. Even a point delivered orally requires a structure, if it is going to persuade. Clear writing always embodies this structure. It reflects the ability to conceptualize and frame an argument. Like the frame of a house, a clearly framed argument helps guide the reader—often a judge—follow on the journey to the desired conclusion. It lays a firm foundation for the real magic which, in the context of the law, is the synthesis, or interweaving, of evidentiary facts with a governing rule. There is no substitute for the ability to organize and frame an argument.
In modern civil disputes, it is always a written instrument—a complaint or claim—which sets a case in motion. While it’s certainly possible to win a massive verdict or coax a settlement out of a case premised on an inartfully drafted complaint, the complaint frames the issues, sets the tone of the case, and introduces the parties and their lawyer. If the complaint is sloppy, exaggerates or overreaches, it underwhelms both the judge and the lawyer on the receiving end. The judge may become prejudiced. Equally important, there can be a subtle, almost imperceptible, shift in the balance of power between the opposing lawyers. Respect between counsel must typically be earned; it is rarely presumed.
Most crucial of all, ask any civil trial or appellate judge and you will hear that, in all but the rarest instances, an argument is won or lost on the quality of the papers. This is not to discount the importance of having favorable law or facts. But good law or compelling facts are worthless if your lawyer has not articulated them in a clear and persuasive manner.
Clients should demand their lawyer have impeccable writing skills!
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