I know, I know: This column is not supposed to be about written advocacy.
And I know, I know: No one needs my smug suggestions, because no one who reads “Above the Law” ever makes any mistakes.
But the legal writing community keeps urging me on (on the web here, here, and here (note her jab at my “commenters”), for example, and off-line constantly). The people who fret about this stuff seem to think that these lessons are worth repeating, so I’m adding one more column on legal writing to the collection.
Here are three possible introductions to one brief. I saw all three types repeatedly while I was in private practice, and I’ve seen all three since I’ve been in-house. (I’ve seen the worst type — the first — only once during my in-house days, and we chatted with outside counsel about what we expect to see in the future.)
So, without further ado, two bad (but typical) introductions, followed by one good one, all for use in the same case….
(Note: I’m drawing the example from an actual lawsuit, although I’ve changed the parties’ names out of an abundance of caution.)
Bad introduction 1:
“Defendant DrugCo (hereinafter “DC”), by and through its counsel, Lat Mystal & Gang, hereby moves for summary judgment pursuant to State Rule of Civil Procedure 56, on the claims brought by plaintiff Susan Jefferson (hereinafter “Plaintiff” or “Jefferson”).”
Why is this bad? Because, if a judge reads nothing else, he or she is likely to read the first paragraph of a brief. And you’ve just wasted the first paragraph by saying essentially nothing. You’ve identified the parties and defense counsel and told the judge that this is a summary judgment brief, but that’s it. The sentence is utterly generic (other than naming the parties, it could be used in any summary judgment brief) and so wastes your best opportunity to start winning the case.
Bad introduction 2:
“Plaintiff Susan Jefferson has filed this product liability action against Defendant DrugCo based on Jefferson’s use of the prescription drug Calmnerves. DrugCo hereby moves for summary judgment on Jefferson’s claims.”
This is slightly better than bad introduction 1, although still plenty bad. At least we didn’t take a detour to provide the irrelevant name of counsel filing the motion, and the judge learns that this is not an untethered summary judgment motion, but a motion in a product liability case. This introduction thus moves the ball slightly, but it does nothing to persuade.
So it’s better, but still not acceptable.
“On September 20, 1999, Dr. Susan Jefferson brought home a scalpel and slit the throat of her six-year-old son. She then slit her own throat. Both she and her son survived. In April 2001, Dr. Jefferson pled guilty to the charge of assault and battery with intent to kill.
“Eighteen months after her guilty plea, Dr. Jefferson sued DrugCo, the manufacturer of Calmnerves, a medication that had been prescribed to treat Dr. Jefferson’s depression. Despite her guilty plea and her admission of intent to kill, Dr. Jefferson claimed in her civil suit, for the first time, that her bloody act was not willful, but impelled by her medication. DrugCo is entitled to summary judgment on Dr. Jefferson’s claim, for two independent reasons.
“First, collateral estoppel prevents Dr. Jefferson from re-litigating issues that were determined in the criminal action, including the cause of the harm she inflicted. Second, judicial estoppel prevents Dr. Jefferson from disclaiming admissions that helped her avoid jail in the criminal action.”
Aha! We’re there!
We didn’t waste time with generic stuff. Instead we focused on the (dare I say it?) argumentative jugular of this particular case. Within a very few short paragraphs, the judge knows the facts, knows the identities of the parties, and knows that my client should win. Perfect!
Different readers may have different reactions to this introduction. Some readers will come away from this loathing Dr. Jefferson — which is fine, because that means that my client should win. Others readers may come away from this feeling sorry for Dr. Jefferson, but nonetheless thinking that she’s unfairly trying to recover money in a terribly sad situation. But that’s fine, too, because that still means that my client should win.
The authors of this brief thought pretty carefully about word choice. Reasonable people disagree over the appropriate short form for the names of individuals in briefs. Some say that “Joseph R. Smith” should be “Smith,” because “Smith” uses the minimum number of words and impersonalizes the party. Others prefer the short form “Mr. Smith,” because that shows respect for the individual, which the court may appreciate. But in my hypothetical introduction, the choice is easy: We’re calling this person “Dr. Jefferson,” because that emphasizes her medical training and advanced degree, making the bloody act particularly offensive.
The authors then chose to have the good doctor “slit” both her son’s throat and her own. She could have “incised” the throats, or “cut” them, or “sliced” them, among other things, but “slit” seems delightfully vicious. (In fact, after we won the motion and submitted a proposed order in this case, plaintiff’s counsel objected to our use of the word “slit” in the proposed order granting summary judgment. So we had the pleasure of briefing to the court whether the word “slit” was unduly prejudicial. We told the court that we preferred “slit,” because we thought it seemed most accurate, but wouldn’t object strongly if the court revised the order to say that the doctor had “cut” or “sliced” her six-year-old son’s throat. I’m not certain that opposing counsel was wise to pick that fight and thus force the presiding judge to linger on this particular detail, reading briefs that debated this issue at length.)
What’s the rule for introductions?
They are short. They are sexy. And they aim for the heart of your particular case. Good introductions show the court (by presenting facts) that your client should win; good introductions do not simply tell the court (by making an assertion, such as “DrugCo is entitled to summary judgment”) who should win.
What does this have to do with inside counsel?
Heck if I know.
I suppose that (1) sophisticated clients insist on decent introductions, (2) outside counsel should surely know how to write them, and (3) corporations minimize legal expense by filing good motions and winning cases, so good writing helps to control costs.
But, more than anything else, people screw up introductions over and over. I’m keenly aware of this, and the legal writing community says that we should work together to educate people about these things. So think of this as a public service message.
Perhaps, in my next post, we’ll go back to our regularly scheduled program.
Mark Herrmann is the Vice President and Chief Counsel – Litigation at Aon, the world’s leading provider of risk management services, insurance and reinsurance brokerage, and human capital and management consulting. He is the author of The Curmudgeon’s Guide to Practicing Law.
You can reach him by email at [email protected].