I recently surveyed judges in the Western District of Pennsylvania. Here is some of what I found:
Nearly all said that an introduction is “essential” or “somewhat important.”
“If the introductory paragraphs start out as boilerplate statements (e.g., the standard for summary judgment) and don’t tell me what counsel believes the issue is and how it should be resolved, I skip the brief and look at the exhibits because the brief has already failed in its purpose: to help me decide what the important facts and applicable law are.”
Nearly all said footnotes “can be helpful in moderation for side points.”
Almost no judges want the citations within the sentence or in the footnotes.
Almost all want them as a separate sentence following the sentence mentioning the decision.
All agreed that these two sentences were acceptable in a brief: “Plaintiff is wrong” and “Plaintiff misstates the facts.”
All agreed that these two sentences were unacceptable: “Plaintiff is dishonest in presenting the facts” and “Plaintiff’s argument is preposterous on its face.”
Organizing opposition and reply filings
Most judges said it was better to focus on why you are right.
About 22 percent disagreed, saying it’s better to restate the adversary’s arguments in order to preserve the structure.
Best ways to shorten a brief
- Less repetition in the argument (63 percent)
- Fewer irrelevant facts in the fact section (50 percent)
Interesting contrarian comment:
“In general I don’t think shorter is better and I don’t think counsel need to worry about the length of briefs. Boring presentations and pointless arguments recycled from the last client’s brief are problems in short briefs as often as in long ones.”
Best way to emphasize a word or phrase
Most endorsed the use of bold.
“Truthfully, emphasis is overdone to the point that the brief writers seem to be yelling at the Court.”
Influence of pragmatic and equitable concerns
Some judges admitted to being influenced by their “equitable sense of what party is more deserving.”
Almost no judges admitted to being influenced by economic considerations, the balance of power between the parties, or the parties’ conduct in the litigation.
“Relative power can be an influence in a contract or business type case, i.e., franchise issues, but not an injury case. I try very hard not to take into account the lawyers’ conduct (usually don’t see the parties much) but if I know that they are obstreperous and fight about anything, I tend to give less credence to their arguments in a situation where the law is not clear.”
“Counsel who want us to adopt their position should make it easy by adopting our style. That is, write in the language of ‘the law compels this result,’ not ‘this result is important to my client.’ We already know both that 18 years in prison is bad news for a defendant and will keep him off the street for a long time. As judges, we quickly adjust to knowing at least half the courtroom will think we were wrong no matter what we do. So telling us the decision is important or hard really doesn’t help: we want to know why we must or must not impose that 18 year sentence.”
“We read briefs like we settle civil cases: we look for common ground and points agreed on much more eagerly than we want to pick out points of conflict. Therefore, the more impartial counsel can sound without giving away anything important, the better.”