I’ve finally plucked “big firm mediocre” out of my life.
First, I left Biglaw, so I’m no longer revising lifeless drafts that arrive either up through the ranks or from co-counsel.
Then, my corporation entered fixed fee deals for virtually all of its litigation work. We invited only firms that do good work to compete for our business, and the winners have performed as expected: No brief arrives at our doorstep until it’s been reviewed by someone who can write.
But we still have a few strays: There are cases in oddball jurisdictions or involving unusual specialties where we select counsel on an individualized basis. And we still have old cases lingering from before our fixed-fee days staffed by an assortment of counsel. Once in a long while, I still run into briefs written in the “big firm mediocre” style.
What’s funny is how consistent it is. Although the briefs address different subjects in different jurisdictions, and they’re written by different people, “big firm mediocre” constitutes its own distinct literary genre. Care to write in that genre (or assess whether you already do)? Here are the characteristics:
A “big firm mediocre” brief isn’t terrible. It’s written in language that you recognize as English; it generally addresses the issues in the case; the author is confident that the brief is fine. But it isn’t; it’s big firm mediocre.
At the outset, if court rules require a “question presented,” big firm mediocre requires that the question be generic and unpersuasive. Thus, in the trial court, the question presented might read: “Should this court grant defendant’s motion for summary judgment?”
On appeal, the equivalent is: “Did the trial court properly grant defendant’s motion for summary judgment?”
In one sense, these are indeed the questions presented; there’s no room to quibble there. But a gifted advocate begins persuading from the start, so a reader sees the question presented and thinks: “Hell, yes! There’s been a real injustice here! I must grant this motion for summary judgment!”
When the reader sees only the generic, unpersuasive question — “should the court grant summary judgment?” — his reaction will be, “Maybe yes, maybe no. It all depends on the situation.” That’s not getting you out of the blocks too fast.
If you want to be a good advocate, think about how to use your “question presented” to persuade. But, if you’re itching to write in “big firm mediocre,” you now have the first of the tools you’ll need.
Big firm mediocre continues into the standard of review. In a brief seeking affirmance of a grant of summary judgment, the brief explains that the trial court decision will be reviewed de novo. (Okay so far.) But the brief then provides a string cite — a couple of circuit court opinions, followed by scattered trial court opinions — to support this proposition.
Why, for heaven’s sake?
Everyone knows the standard of review. The appellant isn’t going to pick a fight here. Space (and the judge’s attention) are limited. Why include a string cite to support an incontestable proposition? Good lawyers don’t do this, but big firm mediocre requires it.
(My generalization of course doesn’t hold true if the standard of review is likely to be disputed. If you’re the appellant, entitled only to review for clear error on some issue, but you’ve ginned up a clever reason why the general rule doesn’t apply to you, then you may have to explain why you’re entitled to de novo review in your particular case. But that’s the exception. In most cases, standard of review is not in dispute; don’t waste multiple cites on it unless you’re a devotee of big firm mediocre.)
The big-firm-mediocre brief then shows its erudition by explaining standards of review that have nothing to do with this particular case. Thus, in our appeal from a summary judgment decision, the BFM genre requires the author to explain that findings of fact are reviewed for clear error; findings are clearly erroneous only when the court is left with the definite conviction that a mistake has been made (or some such thing); the following half-dozen cases support those propositions; mixed questions of law and fact are reviewed de novo; and yet more cases prove that additional irrelevant point.
Give your reader a break! This is an appeal from summary judgment. Barring the exceptional, it will be reviewed de novo. There’s no reason to waste time explaining standards of review that don’t apply to this appeal. But the BFM gang do it, perhaps because the form brief the author’s cribbing from contained that discussion, and the only way to produce good work is to follow forms mindlessly.
In the statement of facts, big firm mediocre begins to resemble the more traditional genre of epic. We read the entire procedural history of the case — complaint, motion, decision, answer, types of discovery served, another motion, responsive brief, reply brief, argument, decision — in painful detail.
But epic morphs into tragedy when the BFM-writer decides to recite not just this litany of events, but also the precise dates on which each event occurred: “Plaintiff filed his complaint on January 30. Defendant moved to dismiss on March 15. The court denied the motion on June 10. Defendant served requests for production of documents on July 1.”
“Tragedy” actually doesn’t do this genre justice; perhaps “torture” is the word I’m searching for. Unless a particular date matters — and 99 percent of the time it does not — omit it! The reader doesn’t care, and the date doesn’t advance your argument. Figure out what matters, and include that. Delete the rest.
Within the last month, I reviewed a draft appellate brief that included in its statement of facts: “The appellant filed its designation of record on [date]. The appellee filed its counter-designation of record on [later date].”
If you don’t see an issue there, find a literary agent! You can live forever in the annals of literary history!
“As Jonathan Swift was to satire, so [you] are to big firm mediocre.” Your name will live for centuries! Here lies you, Esq., like “Ozymandias, King of Kings!”
The rest of the BFM brief contains the usual litany of horrors: Agency is a “unique and special” relationship; the “agreement was intended to incentivize”; “there was a draft of such agreement prepared”; the company “was sold”; and all the rest.
Ah, big firm mediocre, now that I’ve plucked you from my life, I’ll miss you!
I sure hope that poetry, drama, romance, tragicomedy and the rest can fill the void.
Mark Herrmann is the Chief Counsel – Litigation and Global Chief Compliance Officer 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 and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at [email protected].