In legal writing, as in any form of communication, tone is crucial. What you say is no more important than how you say it.
When addressing the court, an attorney should strive to “be the voice of reason—with a tone of unflappable calm,” as legal writing expert Bryan Garner has put it. Educate the court on the law and the issues respectfully.
In Making Your Case: The Art of Persuading Judges, Garner and his co-author, the Hon. Antonin Scalia, suggest the best analogy is an “experienced junior partner” explaining a case to a “highly intelligent senior partner.”
Unfortunately, in composing their briefs for the court, many lawyers, especially trial attorneys, forget they are not speaking to a jury. They would be wise to forego overt appeals to emotion, and avoid reliance on rhetoric and hyperbole. A blatant appeal to sympathy may make the judge suspect the law is not on your side. Even worse, some judges will take an attempt to play on their heartstrings as an insult, and conclude the attorney thinks they have the sophistication and acumen of the most gullible juror. Appealing to a judge’s sense of justice, however, should not be avoided. There’s a critical distinction.
To establish credibility with the court, err on the side of understatement. Show some restraint. Refrain from overreaching on a point and overstating the case. An assertion such as, “Their argument is wholly and completely without merit,” acts as a red flag, an open invitation to scrutinize more thoroughly. The natural reaction is to scout for the slightest point in the other side’s favor. Inevitably, one will be found, and any respect the attorney has garnered will be lost.
Be sure also to treat the opposing party with respect, regardless whether deserved or truly felt. Snapping, snarling, and sniping are high on most judges’ list of pet peeves. Show courtesy in correcting opposing counsel’s misstatements of law or fact. And don’t breathlessly recite their (or the lower court’s) every mistake, especially if the list is lengthy. Summarize, instead. “[I]t is proper to annihilate your adversary—but do so gracefully,” wrote the Hon. Raymond E. Peters in The Preparation and Filing of Briefs on Appeal (1947) 22 Cal. St. B.J. 175, 183.
Not this (borrowing, again, from Garner): “[Party X] makes meritless claims … blithely ignores the filings … blunderingly carps …”
But this: “[Party X] asserts that [Party Y] has waived this appeal. For example, [Party X] claims that [Party Y] did not challenge the statement of decision and cites [Case]. [Case] is not on point, because … .In fact, [Party Y] has,” etc.
Retaining a tone of civility and dispassionately unpacking your opponent’s claims – especially when faced with bullying and potshots—is far more effective than engaging in a tit-for-tat, and far more likely to convince the court that your arguments are the worthier.
About the author:
Savannah Blackwell is a former news reporter who covered government and politics for more than a decade, mostly in San Francisco. She became a licensed California attorney in 2010 and specializes in legal research and writing. She can be reached at firstname.lastname@example.org.