LawProse Lesson #156: The biggest mistake in motion practice.
The biggest mistake in motion practice. What’s the biggest mistake commonly made in motion practice? It’s getting off to a bad start, typically with a repugnant paragraph containing cumbersome boilerplate and parenthetical definitions that insult the judge’s intelligence. A brief that gets off to a bad start is a bad brief. There is no recovering. A good start, by contrast, coolly and logically states the problem to be decided — in a way that subtly leads to a win for the party filing or opposing the motion. Sad to say, but it’s a rare sight outside LawProse circles. The LawProse rule: you must say on page one — in the opening paragraph — why you win. And you must do it in plain English that any nonlawyer can understand without having to read further. That’s what we teach, and we give innumerable examples. Successful ones. For further reading: The Winning Brief 53-73 (2d ed. 2004; 3d ed. forthcoming). Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 25-26 (2008). Garner on Language and Writing 108-10; 126-30 (2009). The Elements of Legal Style 181-82 (2d ed. 2002). Legal Writing in Plain English 69-78 (2d ed. 2013).