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June 20, 2016
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In litigation, first impressions frequently are made through the written word. Professional, coherent and accurate writing is crucial to establishing a good reputation with the court, and ultimately winning your case.

The first member of a judge’s staff to review a fully briefed motion is often the judge’s law clerk. During my time as a clerk, I perceived several common complaints about the writing habits of lawyers. Below are some tips to help you avoid these common errors and to improve your written advocacy for the most fastidious audience: the judge’s law clerk.

1. Be honest about the facts.

Some lawyers try to “spin” or re-arrange the facts of their case to deflect the clerk’s attention from negative details. Many times, however, this technique merely serves to confuse, or worse, mislead the clerk.

Inaccurate characterization of the facts of your case will get you nowhere. The clerk ultimately will piece together the correct details (that’s their job) and they will assume that you are an unorganized, sloppy writer or that you were trying to hide something. Either way, a negative inference will be drawn.

It’s best to present the facts in chronological order (assuming that’s appropriate) and candidly disclose negative facts. Additionally, only discuss the facts that are relevant to the matter you are briefing. Unlike a jury, the clerk will not be swayed by positive facts about your client if they have no bearing on the case.

2. Put your best argument first.

This is not a new tip, but it bears repeating.

The clerk might have hundreds of pages of briefing to read, and putting your best argument first will ensure that it gets the proper attention. You also should put the best “law” first ‒ that is, consider what courts’ opinions are binding and cite the opinions in order of precedential value. For bonus points, try filtering your research by “judge” to locate opinions by the presiding judge on the specific issue you are briefing.

Unless there has been an intervening change in case law, most judges adapt and reuse legal standards from prior opinions on the same issue, and this level of attention to detail will be appreciated by the clerk. If you can locate only persuasive authority, let the clerk know. Likewise, if there is no authority on a particular issue, mention that as well. Last, be sure to explicitly point out where disposition on particular grounds means the clerk does not have to consider the remaining issues. The court’s time, like yours, is precious.

3. Don’t make unsupported arguments.

One of the most frustrating experiences as a law clerk is having to dig for the case law to substantiate an argument that an attorney made but failed to support. The clerk should not have to do your job for you. Similarly, sloppy analysis of case law is highly detracting because it casts doubt upon the accuracy of the remainder of your brief.

4. Expose weaknesses and confront them.

There are varying schools of thought on this issue. While minimizing bad legal authority may be fine, it is more effective to confront that authority and try to persuade the clerk why it is not applicable. The court’s primary concern (other than imparting justice) is being overturned on appeal, so the law clerk will be digging for, and will find, the negative authority.

Consider that the court might actually want to decide the matter in your favor, and if you can craft the arguments to help it circumvent the bad authority, rather than burying it in a footnote, you’ve done your client a true service.

5. Check the attitude.

Pointing out errors by opposing counsel is fine if you can accomplish it in a way that is professional. Making jabs, snide comments or disparaging remarks is distracting and unattractive, and will not advance your cause with the court.

Also, words such as “mischaracterize” and “misconstrue” are frequently overused.

Before claiming that opposing counsel has erred, be sure to consider whether the “error” is really just a difference of opinion. Last, if you find yourself the victim of such an attack, do not accept the invitation to join the fray but try to respond in a manner that is firm but respectful.

6. Reply briefs are your friend.

Many law clerks read the reply briefs first. A reply brief should be a distillation of the major arguments and final sticking points of the case.

Many lawyers simply regurgitate their entire argument in their reply brief. This is a mistake and a waste of time.

The most effective reply briefs identify and discuss only the points that the opposing counsel has failed to answer. Sometimes a reply brief alone can win the motion. On the other hand, surreply briefs are the bane of the law clerk’s existence. There are extremely few instances in which a surreply brief is appropriate, because the opposing party should not be raising new arguments in the reply. In the very limited circumstances where you think a surreply brief is warranted, be sure to first check whether you need permission to file one, and keep it as concise as possible.

As I talk about the need for preciseness, clarity and brevity in legal writing, I’m reminded of a quote by Learned Hand, federal judge and co-founder of the American Law Institute: “The language of law must not be foreign to the ears of those who are to obey it.’’

Sarah Hyser-Staub is an associate in McNees Wallace & Nurick LLC’s Litigation, Automotive Dealership, and Alcoholic Beverage and Liquor License groups. Prior to joining the firm, she was a law clerk for The Honorable William W. Caldwell at the United States District Court for the Middle District of Pennsylvania.