6. Don’t just cite — explain. Judges reported that too often attorneys cite authority without explaining its importance to the case being decided. Generally, the judges wanted fewer citations and more analysis. And, while we are on the subject of citing authority, several judges let us know that they notice when we don’t cite contrary authority. Bonus Tip: For the really important authority, 74% of circuit judges report they would be more likely to read it if the attorney provides a copy — some even suggest a highlighted copy.
7. Follow the rules. No surprise, judges — especially appellate judges — want attorneys to follow the rules when submitting motions and briefs. Mistakes in abstracting and assembling the addendum continue to be a problem — making several appellate judges’ list of “most common mistakes” or “top two pet-peeves.” The most common concern listed: abstracts and addendums tend to be too fat — too much unimportant stuff included. While preparing the survey questions, a couple of circuit judges mentioned their dislike of sur-replies and other filings not specified in the rules. The issue was included in the survey with the judges being asked to rank such filings as either “mildly annoying,” “really annoying,” or “infuriating.” The result: 26% of judges responded that such filings are mildly annoying; 38% rated them as really annoying; and 32% decried them as infuriating. So, perhaps getting the last word on some issue is not the best word in trying to persuade the judge.
8. Clearly, the egregious, horrific, and magnificently ornate writing should cease on or about now. Judges are not fans of words like “obviously” and “clearly” — nearly half report such words to be either “really annoying” or “infuriating.” And over-the-top adjectives fared worse prompting over 20% of judges to rate them as “infuriating.” Flowery prose, boilerplate, and legalese drew fire from the judges too. So what type of words do the judges want? In the words of one appellate judge: “concise, ordinary English.”
9. Proofread you’re rioting so it makes since. Spelling and grammar mistakes detract
from the substance of writing. And, sometimes, the words just don’t make sense. Several judges issued pleas for “proofreading” and “for the attorney actually signing the brief to read it.” As the heading of this section demonstrates, spell-check alone is not enough.
10. Organize your writing. Less than half of the responding judges believe that briefs are well organized. Some of the comments urged more consideration of the architecture and for the writing to be organized in a logical fashion. Upshot: spend time thinking about how you are organizing the writing and consider whether a different sequence of issues or sentences might tell the story better. Remember, in organizing — as well as writing — keep the important stuff in focus and let the rest go. Endnote: 1. All Arkansas circuit and appellate judges received a survey. The survey was five pages in length and covered a range of issues from how judges use legal writing to what they view as effective and ineffective writing practices. The questions varied some between the appellate and circuit judges but were similar. We owe gratitude to the judges who took the time to respond to the survey as the responses tended to be thoughtful and enlightening. Out of 120 circuit judges, 50 responded. Out of 19 appellate judges, 11 responded. Additionally, a special thank you is extended to Chad Baruch, J.D., Assistant Principal Yavneh Academy Dallas, for providing inspiration for this project and graciously allowing the use of his survey questions from a similar project in Texas. n
Rodney P. Moore is a partner with Wright, Berry & Moore P.A. where his practice focuses on appellate advocacy and civil litigation. He serves on the Arkansas Supreme Court’s Committee on Civil Practice and is one of the authors of the Handling Appeals in Arkansas manual published by the Arkansas Bar Association.
10 Tips for Improving Legal Writing 1. MORE is less. 2. Get to the point and stay there. 3. Introductions and substantive headings are helpful. 4. Remove the barbs from your writing. 5. Circuit judges like bullet points. 6. Don’t just cite — explain. 7. Follow the rules. 8. Clearly, the egregious, horrific, and magnificently ornate writing should cease on or about now. 9. Proofread you’re rioting so it makes since. 10. Organize your writing.
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Vol. 45 No. 3/Summer 2010 The Arkansas Lawyer
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