LawProse Lesson #313: Judging Motions: Part 1.
Judges often lament their inability to grade motions* (and responses to motions) in addition to declaring winners and losers. To be sure, a C or D motion sometimes wins—because it’s not uncommon to have lackluster briefing on both sides. In fact, that’s the rule, not the exception. But a well-written motion saves the court’s time and can help bring you a win. Trust me: judges hate motions that waste the court’s time. This is the first in a three-part series about how to evaluate the quality of a written motion. The first criterion has to do with page 1. Are the first few lines devoted to stating the problem to be decided by the court in a cool, logical way, shorn of all inflammatory words and invective? Is it businesslike and economical, stripped of legalistic folderol? Is it an example of good exposition: does it explain the problem in a way that almost any reader could readily understand? Will the experienced legal reader instantly recognize that you’re no ordinary lawyer who apes all the others? Does the prose suggest the style of a writer whose work will make for enjoyable reading? Page 1 is the most valuable real estate you have. If you waste it on 19th-century legalistic “pleasantries,” on lots of parenthetical shorthand phrases for obvious names, or on insults directed to your adversary, you’re being ineffective. What percentage of motions do well when judged by these standards? Less than 5%. I’ve polled my judicial audiences on this question many times, and the consensus is always about the same. This is the first step in assessing the quality of a motion. Next week: step 2. _________________________ *In using motion, we include the memorandum in support that is commonly used in many jurisdictions. Further reading: Garner on Language and Writing 108–10, 114–16, 120–23 (2009). Legal Writing in Plain English 73–76 (2d ed. 2013). Making Your Case: The Art of Persuading Judges 83–88 (2008). The Winning Brief 77–93 (3d ed. 2014).