The Bench & Bar magazine is published to provide members of the KBA with information that will increase their knowledge of the law, improve the practice of law, and assist in improving the quality of legal services for the citizenry.
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COLUMNS WRITING TRIAL MEMORANDA: By: Brock Collins A LAW CLERK'S PERSPECTIVE I had the good fortune to spend 10 years after graduation clerking for trial court judges at both the state and federal levels. What surprised me the most was the wide disparity in the quality of briefs submitted to the courts. This made a strong impression on me as a young lawyer: The quality of an attorney's credibility and reputation is based in large part on the quality and thoroughness of her legal writing. Where the law was unsettled or undeveloped, or where the facts of the case did not clearly favor one side, the attorney with the better written memorandum often ended up winning the argument. The following are just a few tips for making your written submissions as effective, efficient, and understandable as possible. Use IRAC. Seriously. To most attorneys, "IRAC" is something mentioned in 1L legal writing class and never discussed again. This is a huge mistake; in my experience, judges (and their law clerks) expect legal arguments to be presented in this fashion. The IRAC paradigm is nothing fancy – in fact, it is intended to serve as a formulaic, routinized method of presenting legal analysis by organizing it around the issue, rule of law, application, and conclusion. Take every opportunity to inform the court of your ultimate position. As my college journalism professors advised me, "Tell them what you're going to tell them, tell them, then tell them what you told them." This applies equally in court briefs. Expressing your conclusion up front allows the reader to better contextualize the argument that follows. 28 Many briefs I reviewed muddled the argument by lumping all applicable case law into one large section. Instead, simplify and clarify the argument by expressing a general, governing rule for the issue followed by a brief statement of what element(s) or factor(s) you will not be discussing (and why). Then, one by one, create a separate "sub-IRAC" analysis for each element or factor to be discussed. State your conclusion on that one element, explain the law applicable only to that element or factor, apply the facts to it, and conclude. Then repeat for each factor. Finally, perhaps the toughest aspect of legal writing is the process of application – "connecting the dots" between the law you just explained and the facts of your particular dispute. The tendency is to merely restate the facts and form a conclusion without explaining B&B; • 1.14 how the facts fit or don't fit the rule. The key, in a sense, is to "do the reader's thinking for her." There should be no inferences, unstated connections, or leaps of logic in the analysis; state them all, even if they seem obvious. Take Care in Citing Authority I was surprised at the overall lack of citation to authority, as well as by the inconsistency and lack of attention to detail in citations. You don't have to be a "Bluebook nerd" to help the court find the authority you're relying upon, but you do have to be precise and consistent. Verify that you are citing to the correct reporter. Make sure you haven't reversed the digits in the volume or page numbers. Most importantly, always provide a pin cite. You want to give the court ready access to the authority supporting your argument. Don't send the law clerks on a trek to locate it; it's your duty to provide it, and the law clerks won't hunt long. A related issue is citing and quoting headnotes. The headnotes provided by West and Lexis at the front of a reported case are not the law; they are written by staff attorneys to assist lawyers in finding similar cases. They are surprisingly inconsistent; I noticed a tendency of headnotes to summarize the law cited by the court rather than its specific application to the facts of that case. It would be a shame to lose credibility by relying on headnotes. Check Your Tone It is important to convey a professional tone in your briefs. Judges and their law clerks cannot abide name-calling, snippy footnotes challenging counsel's credibility, unfounded accusations of ethical violations, and other barbs. Such behavior will harm your reputation in the court's eyes more than it will undermine opposing counsel's. In these situations, it is difficult for the court to filter through the righteous indignation to uncover the legitimate analysis. Attorneys must develop the ability to disagree without descending into incivility. Grammar and Punctuation Historically, law is one of the great "learned professions." The use and manipulation of language is the hallmark of legal practice; it is our stock in trade. In my career as a law clerk, however, I was often astonished at the sloppiness of language in legal memoranda. It is helpful to consult a usage and style manual for those pesky, nuanced grammar rules, but perfect English isn't necessary. Most errors in grammar, punctuation, and spelling occur due to inadvertence and oversight, but the effect on the reader is that the writing seems less intelligent or, at the very least, less professional than fundamentally sound writing. It affects the credibility of the attorney's argument and his commitment to the client. Take a few minutes to review your brief with "fresh eyes;" it's amazing what you'll catch. Formatting There is an art to writing a brief, and this art has an aesthetic component. There is just something about the way a good brief "looks" on the printed page; it conveys a sense of professionalism and earnestness that is difficult to describe. A poorly-formatted brief looks sloppy and half-hearted; the reader is (perhaps subconsciously) left with the impression that the argument is inferior or not thought through. In addition to complying with any applicable local rules requirements for margins, font, spacing, and citation, pay attention to how the document looks on the page. Shape up the case caption. Create uniform headings. Be sure to clean up the font in and remove unnecessary details from block quotes cut-andpasted from other sources. And number your pages! Law clerks like to print briefs and take them apart, so it will save them some consternation. Conclusion Brief writing is a critical skill in the practice of law. If your case load is growing, solid writing fundamentals will allow you to produce highquality briefs more efficiently. Take it from a former law clerk: The easier it is for the court to review and understand your position, the more seriously it will be considered. Brock Collins is a 1996 graduate of the University of Kentucky College of Law. He is currently a legal writing professor and director of Bar Preparation at the Charleston (S.C.) School of Law. He is licensed in both Kentucky and South Carolina.