Trials & Litigation

Judge Recounts, in Brief, How to Write Your Way to Defeat


Following up a more serious take on e-mail etiquette for lawyers, this month Judge Gerald Lebovits dished advice on brief-writing dripping in humor and sarcasm.

In his New York Bar Association Journal (PDF) column, the New York housing court judge counts 10 ways lawyers can lose cases on briefs alone. Some highlights:

Rule No. 3: Quote Other Judges and Lawyers Because Your Ideas Don’t Matter. “Using lots of long quotations means you didn’t do independent research and analysis. Make your lack of effort obvious.”

Rule No. 4: Citations Are for the Lame and the Weak. Add a cite after every proposition in your brief, to show you’re smarter than the judge, and be sure to get the cites wrong and leave out the page numbers.

Rule No. 5: Being a Lawyer Means Knowing How to Break the Rules. If the case limits your brief to a certain number of pages, feel free to make it five times longer. “The longer and more boring your brief, the faster you’ll get the judge to deliberate over your brief.”

Rule No. 6: Make It Personal. Attack the judge and opposing counsel with condescension, and critique your adversary’s writing skills. “Don’t be deferential to the court … If you choose to be deferential, make it sound phony: Use ‘respectfully’ a lot.”

Rule No. 9: Be Superficial: It’s Not the Substance That Counts. “Write emotionally: Show the judge what matters. Because understatement is persuasive, be sure to exaggerate.” Also include facts that are not on the record.

Raymond Ward noted Lebovits’ column at the (new) legal writer and also remembered a similar column by Judge Alex Kozinski of the 9th U.S. Circuit Court of Appeals that appeared in the BYU Law Review (PDF) in the 1990s: “The Wrong Stuff: How You Too Can…Lose Your Appeal.” One of Kozinski’s tips:

“Chiseling on the type size has two wonderful advantages: First, it lets you cram in more words, and when judges see a lot of words they immediately think: LOSER, LOSER. You might as well write it in big bold letters on the cover of your brief. But there is also a second advantage: It tells the judges that the lawyer is the type of sleaze ball who is willing to cheat on a small procedural rule and therefore probably will lie about the record or forget to cite controlling authority.”

Hat tip: Legal Blog Watch.

Updated at 3:18 p.m. to correct the spelling of Lebovits’ name.

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