Be A Winning Writer, Not A Self-Indulgent One, Starting With Complaints

Legal writing has a purpose: any of the writings we submit as litigators to a court or arbitrator must be directed towards winning for our clients.

“In law it is good policy to never plead what you need not, lest you oblige yourself to prove what you can not.” – Abraham Lincoln

We lawyers love to write, at least most of us do (as well we should, since to say it’s a big part of our job is an understatement). But as with all of the work we do, we need to remember our writing has a purpose: any of the writings we submit as litigators to a court or arbitrator must be directed towards winning for our clients.

Hopefully we actually enjoy the writing. If not, we shouldn’t be lawyers, or at least we should be the kind of lawyer that does not need to write much.  There are at least certain kinds of litigation where the filings are boilerplate, and where virtually everything is argued, and frequently decided, in oral argument or hearings resting largely on oral testimony. But such litigation is the exception that proves the rule: as lawyers we are writers, and, like any fundamental part of any craft, we should enjoy the writing.

But the primary goal of our writing simply is not our own enjoyment. It’s serving clients. Over time I’ll discuss in this column writing, and the need in general to be focused on your goals (overall in the representation, and of the writing in question). Today, I want to focus on one type of paper where the best writers find it difficult not to be self indulgent: complaints.

The best litigators are story tellers. A complaint seems like a great opportunity to tell your story. After all, clerks and judges (the primary readers of complaints) like stories, too. We should enjoy ourselves and tell a good – if truthful – story as we lay out the facts supporting our claims, right?

Wrong. Big wrong. While we generally have to write our complaints before we write any other substantive papers in a matter, it’s one where restraint is more important than any other.

We should not go out of our way to be boring. Some narrative is good, essential even. If you handle complex business matters as I do, even with experienced judges and arbitrators you want to have a basic story. Whatever crass view people want to have about the law, I think deciders in disputes — judges, juries, and arbitrators — want to do justice. A story that shows why your side should prevail is consistent with justice being done is important.

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But try to control yourself. With complaints, less is more. More precisely, your goal should be just enough — just enough to lay out your basic narrative, just enough to withstand a motion to dismiss, if applicable.

I return to the adage with which I began this column. As with anything I’ve ever read our greatest president write about law and lawyering, Lincoln was spot on. Don’t plead it unless you need it.  Not only will you need to prove whatever you plead, your client is stuck with what you plead until the end of time.  Sure, you can amend, and your client can attempt to blame you when he’s cross-examined about a factual error (“My lawyer wrote this. I don’t remember when I saw it”). But the client is still stuck with what you wrote, at least in some fashion.  A good lawyer at trial can make a jury look right past the “blame the lawyer” defense and stick any inconsistency on the client (“Oh, your lawyer wrote this. But your lawyer relied on you to get the facts in the first place, right?”).

Write the novel in your spare time. On your day job, keep the complaint focused, just enough for you to win.


John Balestriere is an entrepreneurial trial lawyer who founded his firm after working as a prosecutor and litigator at a small firm. He is a partner at trial and investigations law firm Balestriere Fariello in New York, where he and his colleagues represent domestic and international clients in litigation, arbitration, appeals, and investigations. You can reach him by email at john.g.balestriere@balestrierefariello.com.

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