Judge Robert Bacharach Guest-Blogging This Week About Legal Writing

I'm delighted to report that Judge Robert Bacharach of the Tenth Circuit will be joining us this week for five posts based on his new book, Legal Writing—A Judge's Perspective on the Science and Rhetoric of the Written Word (just released by the ABA Press). Some praise from Dean Erwin Chemerinsky of Berkeley Law School:

A magnificent book on writing. Drawing on the lessons from psycholinguistics and rhetoric, Judge Bacharach has written a remarkably practical book on how to write effectively. Judge Bacharach illustrates his points with very specific suggestions and countless examples from briefs from top lawyers and opinions of judges. I learned so much from this wonderful book.

I very much look forward to Judge Bacharach's posts!

Comments

[KenveeB]

As an appellate attorney, I'm very interested to read more.

[Jimmy the Dane]

Maybe I am just jaded but I am becoming increasingly skeptical of the common law, jurisprudence approach we say runs our system of laws. In the last 10 years I've seen cases, with almost identical fact patterns, end up with completely different results. Seems to me much of lawyering these days is find the right venue, or the luck of the draw when it comes to a judge. Being able to make the "correct" argument just gets you the result that was probably inevitable. Maybe 1 in 50 cases teeter on the actual quality of the lawyering. The other 49, well you just need to show up.

[Dilan Esper]

I think it's more than that that depend on the lawyering, but it is certainly true that you can write a bad brief and deliver bad arguments and still win cases. And not only because of biases, but also because often the facts are just on your clients' side.

Lawyers care about lawyering for the same reason politicians care about strategies that probably only move a handful of votes. Because it is the only thing within our conrol.

The other thing, and I hope Bacharach gets into this, is that most of "good writing" is simply presenting your client's case clearly. A lot of lawyers think that "good writing" is synonymous with "borderline dishonest writing" or "hyperbolic writing", and neither of those things are true.

[Jimmy the Dane]

I concur that you have to at least look like you are trying, but the quality of the "try" doesn't have to be great. And the facts probably drive more then the law. A court is more willing to suppress evidence if the guy doesn't have a conviction list a mile long. Or you are more likely to get a favorable ruling in an eviction if it is some old lady that lost her job rather then a guy who looks like a dead beat.

I think the edge in appellate argument comes with making the more "easy to follow" line of reasoning. The judge is thinking about writing the decision (or how to tell his clerk to do it) and if you make that look easy and elementary the more likely you are to succeed.

But these grand ideas that lawyers are nothing more than "transaction agents" are old and antiquated. The job boils down to getting the insurance company to pay out a claim or convincing the ADA that jail time isn't worth it in this case. Maybe 1/1000 cases involves breaking new ground. The rest are just working cases through the process.

[Dilan Esper]

And even in that 1 in a thousand, the briefing sometimes doesn't matter.

For instance in your typical high valence Supreme Court case (such as on abortion), there's thousands of pages of paper filed, and none of it really makes any difference. The justices know how they feel about abortion and it's just a matter of learning the facts of the case and seeing how they fit into their preexisting worldview.

[David Nieporent]

No, even in those cases, lawyering matters. The good lawyer may be able to convince the justices, "This is how you can issue a really really narrow ruling in my favor, regardless of your overall worldview." (Or perhaps the reverse: "Yeah, I know I'm going to lose, but here's how you can issue the narrowest possible ruling against me.")

[Dilan Esper]

I don't buy that. I know it is said. But even the narrow-broad thing is worked out by the justices, not the advocates.

We want to believe we have more influence than we do.

[Dan Schiavetta]

I've learned a thing or two about appellate writing, from about 25 years of experience. They go against what I was taught.

1. Be wordy and repeat. Several times I've made an argument that the appellate court did not pick up on because I explained it just once, concisely, and then moved on. For example, a few years ago I argued a contractual indemnification clause. It was was a short clause and I spent less than a page on it (because there was very little to explain) and then just a brief mention in the conclusion section. My brief, as usual, was short, just 10 pages. In its decision, the court said, "Appellant has not pointed to any clause for contractual indemnification, or indeed to any contractual language at all."

2. Explain the standards for summary judgment. Yes, it seems unnecessary. But sometimes the court just doesn't make the full analysis.

3. Use legalese. Any judge will tell you they prefer plain English. But that's what they want to be seen as wanting. In fact they're more impressed if you sound like a lawyer.

None of the above means overdo it -- don't be excessively wordy, don't go on and on with summary judgment case law, and don't make your legalese so obvious that it calls attention to itself. But I've learned that these are things that actually work.

[LawTalkingGuy]

What do you mean by legalese? There is a difference between terms of art that are necessary and clutter words like “heretofore” that are unnecessary.

[Dan Schiavetta]

I mean clutter words, and lawyerly ways of saying things that don’t involve terms of art and could just as easily be said in plain English.

[librarian]

Were you going to attribute your source?

[LawTalkingGuy]

Interesting to have the perspective of someone who was a magistrate immediately prior to his appointment on a Circuit Court.

[librarian]

Ok. If there were an article on me at Wikipedia, I'm not sure how I would feel about it being reposted without attribution. In any case, in the Chrome browser, you can Google search by highlighting the text to search, right clicking, and selecting "Search Google for 'X'" from the drop down. It is an important trick all Google searchers should know.

[LawTalkingGuy]

Sorry. *Magistrate Judge.