Litigators

Your Spirit Animal Is The California Forest Fires: Write Briefs That People Remember And Get the Job Done

Don’t write briefs that look like they were written by a lawyer robot.

By Matthew W. Schmidt  
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A lawyer friend of mine once told me that if he ever needed a litigator for himself, I’d be his first call because I’m not satisfied by winning or even my adversary losing. I’m not happy, he said, until I’ve made my adversary eat his own eyeballs and left him living in a lice-infested shack in the bad part of town, addicted to heroin to drown out the screaming in his head.

Of course, I don’t actually want to hurt my adversary. But, I do want to work with my colleagues to achieve the best possible outcome for our clients. So I took my friend’s point as a compliment, and I remembered this quote because it was good, colorful imagery.

As someone who has made it through the recent California fires, I’ve been reevaluating some parts of my life, as is the prerogative of all those who survive near-death experiences (or, in this case, a few days of power outage). I’ve realized a few things in that self-reflection. That life is far too short to not work hard. That you must set very high goals for yourself. But most importantly, I realized that at the end of the day, you just need to metaphorically rip peoples’ faces off.

Or as Michelle Wolfe puts it: Your words should be life-alteringly hurtful.

DON’T WRITE BRIEFS THAT MAKE PEOPLE WANT TO CLAW THEIR EYEBALLS OUT

You should, at least, write like a human. Or, at a minimum, like your target audience is a human. The next time I see “hereto,” “therein,” or full-sentence case quotes full of alterations in a brief — or, God forbid, in an email — I may throw someone out a window.

I regularly wonder why so many lawyers think that the quality of legal prose increases the more stilted it becomes. Maybe I’m overthinking this and most lawyers are just terrible writers with no ear for language, but that’s too easy to be a satisfying answer. Is it risk aversion, laziness, or misplaced nostalgia? Is it absorbing too much terrible legal writing, creating a cruel circle?  I have no idea. The question haunts me.

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But whatever the reason, don’t be a perpetrator. If you’re doing it out of risk aversion, think through your life decisions a little more carefully. You’re introducing more risk into your life by writing bad briefs. You’re annoying your colleagues, bosses, judges, and clerks. They’re probably talking about how much they hate reading your briefs. So just stop.

BUT DON’T BE OBNOXIOUS

At the same time, of course, don’t try for writing gimmicks that you can’t execute. I had an adversary once open a summary judgment brief with a Macbeth quote — definitely don’t do that. Rhetorical questions also never work. Generally don’t try to be clever.

Know your audience and aim for the right register. Metaphors about eating eyeballs are appropriate for casual conversations between friends but are generally too strong for formal court filings.

Or put another way, know your limits. Just as a good litigator needs to know exactly how long they can go without sleep and perform certain tasks, they also need to know what rhetorical tricks they can pull off. You need to be very good to pull off jokes.

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STRIKE A BALANCE

But avoiding jokes isn’t the same as being boring. The best tone is usually something like the New Yorker: Strong, carefully structured prose that draws the reader in without drawing attention to itself. While you want people to remember your brief, you want them to remember it because it makes the point so well that the conclusion seems the natural conclusion. If they see the artifice, the effect is lost.

So stop writing like a robot, and start making an effort.

Matthew W Schmidt Balestriere FarielloMatthew W. Schmidt has represented and counseled clients at all stages of litigation and in numerous matters including insider trading, fiduciary duty, antitrust law, and civil RICO. He is a partner at the 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 matthew.w.schmidt@balestrierefariello.com.

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