How to Win Motions and Influence People

How to Win Motions and Influence Judges: Tips on Great Brief Writing

Topics Start Early

Topics Four processes of writing • Madman (research, ideas) • Architect (organize) • Carpenter (first draft) • Judge (edit, tighten)

Topics Understand your audience

Topics Hon. Bruce Heller Understand your audience and how to appeal to that audience without losing their attention. For brief writers, their audience are busy judges who do not have all day to read your motion. This is particularly true of state court judges who, unlike federal judges, do their own work.

The lawyer who has distilled his/her arguments down their essence and is succinct will be more effective than the advocate who confused thoroughness with persuasiveness.

Topics research, research!

Research,

Topics organize, organize!

Organize,

Topics

Topics IRAC

Topicsand concise opening Strong • Grab the reader’s attention • Provide an overview of the issues and your arguments

Topics Sleep on it!

Use simple declaratory sentences Topics over convoluted legalese

Topics

August 30th

Topics “On January 5, 2022, Defendant John Smith, acting on behalf of Defendant ABC Corporation as its employee, was driving northbound on I-5 when he suddenly rear-ended Plaintiff Alice Johnson at a high rate of speed.”

Judge’s suggestions on Topics efficiency and organization DO Use headings for each section of your brief Organize/tab your supporting materials Be prepared to provide copies of cases DON’T Don’t attach excessive portions of exhibits (e.g. the entire deposition or answers to interrogatories) Don’t waste time stating the obvious at length (e.g. the summary judgment standard) BUT, Don’t assume every judge knows the idiosyncrasies of the substantive law at issue

BeTopics proactive, not reactive

Topics Edit, edit, edit!

It’s a brief – Topics BE BRIEF!!

“If I had more time, I would have written a shorter letter.”

--Mark Twain? Benjamin Franklin? John Locke? Blaise Pascal?

Topics Tell a story. Humanize your client.

Topics Use visuals

Topics your credibility Maintain

Topics suggestions on credibility Judge’s DO

DON’T

When presenting facts, cite to the record

Don’t overstate or mis-state the facts

Address the opposition’s key cases on the law and facts

Don’t overstate or mis-state the law

Address adverse cases or portions of cases head on

Don’t purposely cherry pick parts of the law or cases that are actually contrary to the reasoning and holding of a case Don’t just pluck out language helpful to your argument

Set out the full context of quotes

Don’t use hyperbole (“This is the most egregious case of fraud ever committed” or “In all my years of practice, I have never deposed a less credible witness”) Don’t use ad hominem attacks (Accusing the opposition of being “disingenuous” or of “throwing a bunch of arguments against a wall to see what sticks”) Don’t use words like “clearly” or “plainly” Don’t include weak arguments to hedge your bets

Topics Hon. Paris Kallas An attorney’s credibility is invaluable. It’s also fragile. It’s hard to build and easy to destroy. Every brief you write adds to, or detracts from, your credibility. So, don’t overstate the facts.

Acknowledge, don’t ignore, the weaknesses in your case. Work it and show why the relief your request is warranted. Apply the applicable standard. Ensure your research is up to date. Do not ever get “personal” or disparaging about the parties or opposing counsel. Be the attorney the judge can trust. You want the judge to think along these lines: if she says this is the core issue, I believe it. If he says counsel have met and conferred and tried to resolve the discovery dispute, but are not able, I believe it. If she says this expert has testimony the jury needs to hear, I believe it.