Legal Briefs Usually Don't Need To Be Perfect
Although no judge has ever rejected a legal brief because it was too well written, edited, and proofed, a diminished return on investment is reached at a certain point.
For many litigation matters, legal briefs are the main way for a litigant to convey their point to a court and persuade a judge to rule in that party’s favor. Depending on the jurisdiction and the judge, courts often do not grant oral argument, so briefs are possibly the only option for litigants to argue their case. Accordingly, lawyers and other legal professionals spend an incredible amount of money ensuring that no typos or formatting issues might make a brief look bad. However, legal briefs do not need to be perfect, and a cost-benefit analysis might suggest that lawyers spend less time proofreading a legal brief for typos or other issues.
I am the type of person who spends an incredible amount of time making sure my legal briefs have no typos or similar issues. Typically, I get to work researching and drafting the substance of the brief as soon as possible. After my arguments are drafted, I review the brief — perhaps a dozen or more times — making sure that I catch the errors that might make the brief look bad to a reader.
The day I file a brief, I typically sit at my desk for hours making sure that everything is perfect. Something about a filing deadline gives me greater clarity, and typically, right before filing, I catch glaring typos that I had not been able to see in the days or even weeks leading up to a filing deadline. Making changes to my drafts to correct typos adds to the stress of filing documents, and I am usually very relieved after I finalize and file legal briefs and other legal papers.
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I have spoken to law clerks and judges over my career about how courts operate to get a better sense of how to improve my practices to achieve the best results possible for my clients. On several occasions, I have been told that courts usually only look at legal briefs once or twice, and they might not look too closely at the documents. As a result, they might not even catch a typo or another grammatical mistake in legal papers. Even if courts do find a typo, it is likely not going to impact how a court rules. There is an old saying that the law does not expect perfection from its practitioners, and as long as the substance of papers is solid, and the papers have only a few typos, that is what counts.
Typos are a fact of life in the legal profession, and judges and practitioners should understand that some amount of errors might be acceptable. I have read many judicial opinions that include typos themselves. Recently, I found a recitation of law in a legal opinion that had a typo in it. I looked up all of the other courts that cited this legal principle from the case I was reviewing, and each court used selective quotations to work around the obvious typo.
Even in extremely important matters that are going to get a lot of exposure, typos are hard to avoid. One time, I was on a team that was researching and drafting a brief on a significant legal matter. This was when I was working at a large firm, and as many as a dozen lawyers, and a handful of paralegals, were also working on this project. I was tasked with reviewing the last draft shortly before the midnight filing deadline, and I told my boss about the handful of typos I found so that they could be corrected before the papers were finalized and filed.
The next morning, I looked at our filed brief with fresh eyes. Sure enough, not only did the first page of the brief have a typo, it was in the first sentence! I am not sure how a dozen or so lawyers could have all missed the typo, and the rational side of me knew that even though there was a typo, this would not materially impact our chances with the court.
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Of course, I am not endorsing sloppiness, and every lawyer should do all they can within reason to ensure as few typos as possible end up in their papers. However, lawyers should not kill themselves when proofreading their papers, and legal briefs, as well as court opinions, are rarely perfect.
Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothman.law.
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