The 5 Edits I Make Most Frequently

In-house columnist Mark Herrmann identifies the lingering problems he still encounters even in generally solid briefs.

dartboard pen inside straightI work almost exclusively with very fine law firms.

The lawyers who inhabit these firms write well. We stopped hiring folks who write poorly many years ago.

So, when I complain about the edits that I make most frequently, this is the advanced course. For typical lawyers, the beginners’ course will do.

The beginners’ course includes, for example: Don’t start your brief, “COMES NOW Bigg & Mediocre, for and on behalf of . . . ” Don’t start every brief with an endless, irrelevant procedural chronology. Use small words and short sentences. Write something that people can understand, for heaven’s sake.

The folks I work with don’t make the beginners’ mistakes. And they often make very few mistakes at all. But these are the lingering problems that I still encounter occasionally.

First: Do not use a generic opening paragraph.

A generic opening paragraph isn’t connected to your particular case. It therefore has no persuasive force. But for some reason, even good lawyers occasionally open with generic stuff:

Sponsored

This motion has no merit. It is a grab bag of irrelevant facts served up in a pot-luck fashion with no guidance to the Court as to any recipe that connects them to the causes of action in the case. Defendants come nowhere close to meeting their burden to “conclusively negate” any element of BigCo’s causes of action and, in many cases, they do not even identify the elements of the claims at issue. Nor do Defendants meet their burden to show that “under no hypothesis is there a material issue of fact that requires the process of trial.” [Cite] This motion should be denied.

(Okay, okay: That paragraph suffers a few other flaws in addition to being generic. But I’m picking on “generic” today.)

Get rid of that paragraph. Start with the next one, the one that tells me what defendants actually did that was wrong and what disputed issues of material fact preclude granting summary judgment. We may need generic statements of law somewhere in the middle of the brief, to tell the court what the applicable standards are, but don’t waste the opening paragraph with stuff that’s unrelated to our specific case.

Second: Do not cite more than one case for a proposition that will be uncontested.

What’s the standard for summary judgment?

Sponsored

It’s very unlikely that anyone will pick a fight about that. So cite one case and move on.

Don’t cite one case, and then tack on “see also” and another couple of cases. If no one is going to fight, don’t waste time with extra citations.

(And, of course, if you ever use a “see also” cite, add a parenthetical explanation of the case after the citation. Just citing a case, without telling the reader what it holds, is a waste of space. But my law firms tend not to do that. They know better.)

Third: Cut out everything — everything — that insults the other side.

“Plaintiff absurdly argues . . . .” “Intentionally misreading this case, plaintiff insists . . . .” “Defendant’s argument is ludicrous.”

Beginners make this mistake all the time. They spend their entire brief taunting the other side, because for some reason they think that’s persuasive.

It’s not. It shows that you’re angry, but it doesn’t show why you should win.

As a client, I’ll settle for winning.

But even very good firms still tuck adjectives into briefs that take up space, but do not advance the argument.

Don’t do that.

First thing we do, let’s kill all the adjectives.

Fourth: Don’t use two redundant adjectives before the same noun.

I really, really, really don’t understand why seemingly good lawyers use duplicative, redundant adjectives. But they do.

Most often, this shows up in discussions of contracts: “The contract clearly and unambiguously requires . . . . ” “The language plainly and unambiguously states . . . .” When in-house lawyers catch this and edit it out, the outside lawyers typically accept the edit in an instant; any reasonable person would. But why make the mistake in the first place? If two words mean the same thing, eliminate one of them.

Finally: Don’t lard up the last line of the brief with unnecessary words.

Here’s the last sentence of the brief: “Accordingly, this court should grant summary judgment.”

Not: “Accordingly, defendant BigCo respectfully requests that this court should enter summary judgment.” (The court knows by now who the moving party is. It’s implicit that’s the guy who wants to win.)

Not: “For these reasons, and those set forth in the opening brief, defendant BigCo respectfully prays that this court should enter summary judgment.” (Do you really think you might lose if you don’t say that you should win for the reasons you just gave — and the reasons you gave in your earlier brief? The reader might be dumb, but he’s not that dumb. We get it.)

Not some other convoluted reformulation of the same concept.

You don’t need all the extra stuff, and the long form wastes space without adding persuasive value. Get rid of it.

But, as I said, that’s the advanced class. By the time we’re quibbling about these small errors, you’ve probably written a perfectly nice draft brief. For that, I thank you.


Mark Herrmann spent 17 years as a partner at a leading international law firm and is now responsible for litigation and employment matters at a large international company. 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 inhouse@abovethelaw.com.