It’s so hard to judge yourself.
Deep in your soul you know that people who criticize you are idiots, and people who praise you are wise and sagacious.
How can you possibly tell if you’re any good at what you do?
I have the answer for you! I’ve created a litigators’ self-assessment test! Now you’ll know if you’re any good!
Here’s how it works: Take out the last brief you filed.
Do it. Now. You won’t learn anything if you don’t follow the rules.
Look at the first sentence of your brief. For about ten percent of the people reading this column, the first sentence of your brief says (and I quote) . . . .
“COMES NOW Defendant [Somebody], Inc., f/k/a [some other name] (hereinafter “Somebody”), by and through its counsel, Bigg & Mediocre, and pursuant to [some rule of procedure] hereby submits its motion for [whatever the heck the rule you just cited authorizes], and states the following in support thereof:”
Was that the first sentence of your brief?
If so, I have some good news for you: Now you know whether you’re a crappy litigator!
(On reflection, that may not strike you as good news. But it’s surely good that you’ve come to this self-awareness.)
What’s your reaction to the fact that you’re no good?
Half of the folks who just learned that they’re bad litigators are outraged!
Those people are sitting and cursing me in front of their computer screens: “You’re an idiot, Herrmann! What do you know? That’s a great introductory sentence! That’s the format I’ve used for all of my briefs, and it cleverly tells the judge who’s moving for what. There can be no better introduction!”
Do you count yourself in that number?
If so, you’ve learned yet more about yourself!
You’re not just a bad litigator; you’re also ineducable.
Look: You get only one chance to make a first impression in a brief. When the judge picks up a brief, she’ll scan the caption (if she’s interested) to learn the names of the parties and the identity of counsel. There’s no reason to repeat that information in your opening sentence. And, if the judge doesn’t care about the names of the parties and identities of counsel, then she probably wasn’t thrilled when you chose to inflict that information on her in your opening sentence.
When the judge picks up “Defendant Somebody, Inc.’s Motion For Summary Judgment,” the judge probably has a creeping suspicion that the brief will present a summary judgment motion on behalf of a party named “Somebody.” And, with all due respect to you and your law firm, nobody cares very much about the identity of counsel. The judge must decide whether Somebody is entitled to summary judgment; the name of the law firm that’s making the pitch doesn’t make much difference.
So cut the boilerplate throat-clearing and use your opening paragraph to show the judge why your client should win: The plaintiff was hurt in the car crash eight years ago, and the statute of limitations has long since expired. The plaintiff admitted that he never read or heard the alleged misstatement, so there can be no recovery for fraud. The plaintiff filed and lost this same lawsuit last year, so this case is barred by res judicata.
I don’t care what you write, so long as it shows the judge — in short, simple sentences — that your client must win. That’s an introduction. “COMES NOW the defendant, making a motion by and through counsel,” is a waste of space.
But, you protest: “I’m drafting this brief for a senior partner, and that senior partner insists that the ‘COMES NOW’ crap is the key to success.”
Sorry, Charlie: Your senior partner is a crappy lawyer, too. You should choose to work for other people, because otherwise you’ll soon have terrible habits ingrained for life. If all of the partners at your firm are telling you that “COMES NOW” is a good introduction, then it’s time to change firms. You’ll never amount to anything if you keep working for these clowns.
Before you abandon your inept senior partner, you might try to help him out. Tell him that his standard introduction wastes space and persuades no one, and that he should consider instead employing advocacy in his briefs.
If you must, you can also explain to your senior partner that he’s a bad lawyer. I’ll help you out here. Show the partner this column!
Hey, partner: You’re a crappy litigator! Mark Herrmann says so, and he must be right, because he has a column at Above the Law. Or because he’s an in-house lawyer, and the client is always right. Or for some other reason that escapes me right now. But please don’t force your associates to write bad briefs. Associates are the future of your law firm; talk to a judge, or someone who teaches legal writing, or anyone with a brain, and then stop passing down bad advice from generation to generation at your firm.
Finally, the reader of my column who flunked my test may decide how to fix what ails him: “Herrmann says that my usual ‘COMES NOW’ blather is a bad introduction. In the future, I won’t do that anymore. I’ll write briefs that immediately cut to the chase, and then I’ll be a good lawyer!”
Not so fast.
If you really thought that “COMES NOW” was a good introduction, then you’re a bad lawyer. If you eliminate the “COMES NOW” nonsense and instead write intelligent introductions, you’ll have transformed yourself into a crappy lawyer who no longer writes terrible introductions. That’s an improvement, but it doesn’t fix the whole problem.
It’s a lock-cinch that, if you start your briefs with “COMES NOW,” then the rest of your briefs aren’t any good either. For example, I’ll bet the mortgage that, in your briefs, you accuse the other side of lying. Opposing counsel makes frivolous, ridiculous arguments! You also use unnecessary adjectives and adverbs, because it’s imperative to convey that that “the law clearly and explicitly states” something. You attach “true and correct” copies of documents, and you explain that testimony is supposed to be “accurate and truthful.”
When you hear that you shouldn’t use the passive voice in your briefs, you think: “But I never write ‘I’ or ‘we’ in my briefs, so I’m not using the passive voice.”
(If you didn’t realize that the preceding sentence was a joke, give it up. Apply to medical school; maybe it’s not too late.)
I’m sorry if my self-assessment test revealed to you an unfortunate truth about your legal skills. But you’re better off knowing than going through life mistakenly thinking that you’re good. That may not be uplifting, but at least it improves your self-awareness.
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 firstname.lastname@example.org.