Judges Speak Out Behind Closed Doors: How Your Briefs Might Bug Them, and How You Can Make Them Smile Instead

To help lawyers write better briefs, I recently surveyed thousands of judges, ranging from state trial-court judges to U.S. Supreme Court justices. Their anonymous responses showed surprising candor and consistency.

My questions touched on everything from formatting conventions to word choice, use of case law, treatment of facts, and strategies for persuasion.

Some of the results are shown below. All have been incorporated into Brief Catch, my new editing tool for lawyers. (Brief Catch users will have access to the complete survey results.)

With Brief Catch, users get instant wording and organizational suggestions on their drafts, as well as up-to-the-minute scores on five proprietary writing measures.

Judges have their quirks, of course, and you should always follow court rules and individual judges’ preferences. But you’re sure to make many judges happier if you follow most of the advice below.

A. Looks Matter: Style Dreams

Ever wonder what the Average American Judge prefers to look at all day? See below.

1. Use the Oxford comma.

56% prefer the Oxford comma
21% prefer no Oxford comma
23% don’t care

2. Put citations in the text, not in footnotes, unless the court suggests otherwise.

78% prefer citations in the text
12% prefer citations in footnotes
10% don’t care

Sample comments: “Don’t want to have to look down to see citations.” “Sometimes they’re not on the same screen when you’re reading electronically.” “Citations in footnotes makes you lose your place in the brief.” (Note that as a compromise, you could include the caption and the court in the text while relegating the reference matter to the footnotes.)

3. Include two spaces after periods (sorry, one-space fans, but many judges are “traditional”).

62% prefer two spaces after a period
21% prefer one space after a period
17% don’t care

4. Do what you want with your right margin, though note that typography expert Matt Butterick recommends ragged, which is easier to read.

35% prefer the text to be fully justified
31% prefer a ragged right margin
34% don’t care

5. Use italics, not bold, for emphasis, but use emphasis sparingly.

76% say that bold or italics for emphasis is okay (though many stressed that emphasis be used only “occasionally,” and many prefer italics to bold)
11% don’t want any use of emphasis
13% don’t care

Sample comments: “Use emphasis rarely, and use italics, not bold, and never all caps.” “Repeated use of emphasis is unprofessional.”

6. Write numbers out only once!

73% prefer numbers to be written out just once (“three”)
<1% prefer numbers to be expressed with both the word and the numeral (“three (3)”)
26% don’t care

7. Define terms concisely and rarely, and use words rather than acronyms.

77% prefer the defined term in parentheses (“ABC”)
11% say that including “hereinafter defined as” is okay
12% don’t care

Sample comments: “If you need to use a defined term, use a word rather than an acronym.” “I dislike acronyms unless they’re very well known, like IRS.” “Avoid defining obvious terms.” “Define terms only when there is a possibility of confusion.”

8. Use contractions cautiously, if at all, but know that the ground may be shifting.

37% prefer no contractions (judges who dislike contractions REALLY dislike them)
42% say that contractions are okay
21% don’t care

B. Simmer Down: Tone Talk

Many judges also called these common attack terms annoying:

  1. disingenuous
  2. clearly wrong
  3. baseless
  4. specious
  5. without merit
  6. frivolous
  7. unfortunately for [the other side]
  8. sanctionable

Sample comments: “Don’t make personal attacks or belittle other side.” “Don’t attack the integrity of opposing counsel.” “Don’t make moral judgments about parties.” “Don’t use language that is angry or suggests personal dislike of opposing counsel or party.”

C. Less Is More: Words Judges Like to Hate

The 34 other words, phrases, and practices that judges most often say they dislike:

  1. accordingly
  2. aforesaid
  3. appellant / appellee (vs. parties’ names)
  4. arguendo
  5. as follows (“just use the colon: the ‘as follows’ is implied”)
  6. as such
  7. clearly
  8. Comes now…
  9. concerning the matter of
  10. each and every
  11. for the sake of argument
  12. foregoing
  13. hereby
  14. hereinafter
  15. heretofore
  16. impact (as a verb)
  17. in view of the fact that
  18. inter alia
  19. it should be noted
  20. Latin in general
  21. notwithstanding
  22. owing to the fact that
  23. prior to
  24. pursuant to
  25. respectfully submits
  26. said (as an adjective)
  27. s/he / (s)he
  28. subsequent to
  29. that being the case
  30. the Court must …
  31. the fact that
  32. the instant case
  33. utilize
  34. wherefore

The nation’s judges shared many more preferences that could help your practice. Here are just a few examples. On fact sections: cut dates that don’t matter! On using case law: two is often a crowd, and both trial judges and appellate judges bemoan excessive quoting. And on structure: the introduction should list reasons you should get the relief you seek. Judges even disagreed about a few matters (case parentheticals, for example, though most are in favor).

In the end, so many litigators and appellate lawyers do so many things that bug judges—and fail to do so much that could make them happy—that even a small effort to accommodate these preferences can go a long way.

And on that happy note, if you’d like to learn more about my new editing plug-in Brief Catch, click here.