Welcome to Ed’s Writing Secrets of Successful Advocates!
What makes Ted Wells, the Paul Weiss partner whom Chambers USA 2006 called “the greatest trial lawyer of our generation,” such an effective advocate? One reason is his signature technique of opening his briefs with a compelling theme that frames the issue in his client’s favor. Many advocates try this with some variation of “this case is about,” and so does Wells, but he excels at varying his approach to match what is at stake in the litigation.
Sometimes his theme is as simple as “we’re in the wrong place.” In Terra Firma v. Citigroup, a case my colleague Ross Guberman highlights in Point Made, Wells moves to transfer venue from New York to England. His opening sentence stakes out the theme: “This case belongs in the courts of England.” Note that Wells doesn’t begin with technical legal terms like forum-shopping or forum non conveniens. His theme is both broader and simpler: this case belongs somewhere else. His folksy idiom and confident voice put the reader at ease. Using the verb “belongs” appeals to common sense. We know intuitively where things belong, and this case doesn’t belong here, Your Honor.
Another classic Wells theme is to suggest that his client isn’t asking for much. It’s one thing to defend against a sophisticated private equity buyout firm like Terra Firma, but what if your client is sued by plaintiffs who refuse to identify themselves? In John Doe VIII v. ExxonMobil, Wells defended his client against eleven anonymous villagers from Aceh, Indonesia. When Wells moved to vacate a court order that granted the plaintiffs the rights to use pseudonyms, he telegraphed his theme: “Defendants’ Motion seeks only the most basic facts about this litigation: the identity of their opponents.” By using qualifiers like “only” and “most” and adjectives like “basic,” Wells sets his theme. We want to know who is suing us. Is that too much to ask?
Nothing could be more elemental than when Wells argues that his adversary has missed the deadline. He is the Shakespeare of the statute of limitations motion, endlessly creative in bringing to life what for most lawyers is a rote procedural slog. For In re Merck & Co. Securities Derivative & ERISA Litigation, Wells opens with “Aegon and GIC sued Dr. Reicin too late.” Note his conviction and unpretentious brevity. In NAACP v. Ameriquest Mortgage Company, he leads with “CitiMortgage served its requests by the deadline. Plaintiff did not.” The three-word sentence hammers home the contrast. And Wells is confident enough open a motion to dismiss with a one-sentence standalone paragraph in North Sound Capital v. Merck: “The federal securities claims asserted in these cases are time-barred as a matter of law.” Wells knows that winning on limitations grounds is the most direct path to victory. He uses it to set the confident tone that opens his briefs.
But Wells doesn’t always sound his theme so starkly. In New York City Parents Union v. Board of Education, for example, Wells was part of a team representing public charter schools. Defending against plaintiffs’ claim that the charter schools should pay $100 million in rent to the Department of Education, Wells uses ace stylist Nancy Abell’s signature technique, repeating his key term three times to establish his theme:
Plaintiffs have failed adequately to respond to any of the three threshold legal issues. Nowhere in their opposition do Plaintiffs contest that their statutory claims are barred for failure to exhaust administrative remedies. Nowhere do Plaintiffs grapple with their inability to identify an injury-in-fact, let alone address this Court’s prior statement that their alleged “harm is speculative.” And nowhere do Plaintiffs establish a private right of action.
Wells understands that not every theme should be stated baldly without qualifiers or nuance. He knows when conceding will make him look reasonable. When NFL football player Jonathan Martin left the Miami Dolphins and checked into a hospital seeking psychological help, the NFL asked Wells to investigate whether workplace harassment—bullying by his teammates—had pushed Martin to quit. The conclusion in Wells’s investigative report: an unequivocal yes. But Wells knew that in the cutthroat world of professional sports, you expect to hear language and see behavior that would seem out of place in corporate America He opens by showing that he isn’t applying a one-size-fits-all standard.
We also understand that context matters. We accept that the communications of young, brash, highly competitive football players often are vulgar and aggressive, and that these players never expected their private communications with each other to be made public. We did not approach this assignment expecting to discover behavior that society might anticipate in, say, an accounting firm or a law office. For better or worse, profanity is an accepted fact of life in competitive sports, and professional athletes commonly indulge in conduct inappropriate in other social settings. We also recognize that good-spirited goading often contributes to team bonding.
Wells then shifts from concession to assertion and states his theme:
But limits should exist. Even viewed in context, some of the behavior and language discussed in this Report is inappropriate by any reasonable measure of conduct becoming of a professional athlete—and, based on what he reported, certainly was offensive to Martin.
So what is the key takeaway from Wells’s writing? Synthesize your best evidence and analysis into one compelling theme. Then lead with it. In your preliminary statement or executive summary, set the framework for why your position is authoritative. It’s the first step to convincing the reader that your client should win.