LawProse Lesson #314: Judging Motions: Part 2.
Last week, we saw that the first step in assessing a motion’s quality is to examine the form and content of the first half-page of prose. Now for the second step. Step 2 is to examine the point headings. Make a list of them. Look at the headings in the order in which they occur. Do they proceed logically? Are they concrete? Are they 15 to 30 words long—and always complete sentences? Are they typed as sentences, in downstyle (lowercase sentence style)? Do they progress from stating the applicable standard to marshaling the crucial facts to showing that the standard has or hasn’t been met? Is the third or fourth point heading devoted to answering the most obvious counterargument? Or, by contrast, are the headings by a so-called “generic lawyer”? Are they set in initial caps or all caps? Are some of them just phrases instead of sentences? Are they too abstract to be fully comprehensible? Do they require the reader to read the full text just to understand what the headings mean? What percentage of motions do well when judged by these standards? Less than 5%. Next week: step 3. Further reading: Legal Writing in Plain English 20–22 (2d ed. 2013). Making Your Case: The Art of Persuading Judges 108–09 (2008). The Winning Brief 403–22 (3d ed. 2014).