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Brief Writing 101 for Plaintiff's Attorneys

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Brief Writing 101 for Plaintiff's Attorneys

Plaintiffs’ lawyers now need to write more than ever – but they are faced with busy judges and need to compete with other litigants for the Court’s time. Join professional brief writer Jonathan Hilton as he explains how to fashion documents judges will look forward to reading. He explains his top ten tips: Five on how to help the judge spot your best arguments in less time, and five on how to make your clients more likable—and your clients’ stories more compelling. We round out the hour by looking at resources that will help you become a better brief writer moving forward.

Transcript

Hello everyone, This is Jonathan Hilton and I am teaching Brief Writing 101 for Plaintiff's Attorneys today. Just a quick introduction to who I am. I am the guy on the right over there. And on the left is my law partner, Jeffrey Parker. And what we do is write briefs typically for plaintiff's firms in novel areas of law. So whenever somebody is trying to make law or create law, we will come in, do brief writing and oral argument in that area. So I'm very excited to share with you today my Top ten tips for how to create a compelling brief, particularly when, as a plaintiff's attorney, you're facing some kind of novel issue or you're just trying to compete for the judges time and attention. I want to give you a thought to get started, which is exactly how busy our judges when you sit down and you write a brief, you are writing for that judge. And how busy is that judge? Well, the answer is judges are very busy in federal court. If you think about it, there's only about 670 trial judges for anywhere from a quarter million to 400,000 new cases that are filed per year on average. At the lower end, it's at least about 300 new cases per year per judge. Of course, it varies somewhat and it can depend a little bit on who has some massive multidistrict litigation going. But the bottom line is that judges are very busy. And in terms of what this means for you, you should be thinking the busier your court is, the harder it's going to be for you as a plaintiff's lawyer to survive a motion to dismiss or a motion for summary judgment. Judges are very busy. It's hard for them to schedule trials. And basically the belt is tightening for plaintiffs. So many cases are being filed. We just have seen a shift over the last 10 to 20 years where we've gone from standards like notice pleading for complaints. If you're recently out of law school, you may have no idea what that is, but in a lot of state courts. If you are filing a complaint. For instance, the standard on a motion to dismiss used to be that the defendant had the burden of showing that no set of facts would entitle you as the plaintiff to relief. Now the standard has shifted and the burden really is more on you as the plaintiff to show that your claims are plausible. So it's getting harder and harder for plaintiffs to get their day in court. Think about it this way. Who are you really competing against on your motion to dismiss? Everybody thinks, Oh, I'm fighting against the other side. I am fighting against the defendant, but I want to provide an alternative perspective for you. I want you to think of it this way. When you sit down to write and you're thinking, who is your competition? You are competing with every other plaintiff in that judge's courtroom who has come to seek justice. There's in some sense, I mean, there's a limited amount of judges out there. There's a limited amount of trial time. And your competition is other plaintiffs and other plaintiffs lawyers who are competing for that judge's time and for their attention. So I want to give you two guiding principles that will help make you more successful in front of judges. The first principle is that if you want to beat out all of those other plaintiffs out there and get your client his or her day in court, you need to make sure that the judge will at every moment actually want your client to have access to justice. The second thing is that you need to make sure that you show that you are going to minimize the burden on that judge's time. Think of it this way. These two principles work together. You want to show the judge that you are giving them the most justice for the judge's time, the most bang for that judge's buck, if you will. These two guiding principles are going to shape everything that I'm going to go through with you today. I'm going to have five tips that are about saving time on the left over here. And then I'm going to have another five tips that are about making your client more likable and your client's story more compelling. So let's go through these one at a time. The first tip. This is about saving the judge time and making the case something that the judge is going to look forward to reading. You want to have a clean looking brief and what you are telling the court is this case is not a dumpster fire. This is going to be fun. Don't want to say easy reading, but you want to keep it just a little, particularly in the trial court. You want to keep it a little bit breezy. You want to have an elegant layout and want you to think about when you're reading a magazine, Do you want a magazine page that is full of dense text so that as you're sitting there, you know, in the airport or the doctor's office, you know, you're scrutinizing every line. You have the print right up to your face and, you know, you're dissecting the article. Or do you want something that's a little bit light and breezy and that it makes for enjoyable reading? So my rules. Be your own magazine editor. Limit paragraphs to seven lines and use whitespace. I'm going to give you an example of what I mean. This is a page that I wrote recently. I like it because. The maximum paragraph size that I ever go for is about seven lines. How does this improve your brief? Well, think of it this way. If you were to just be skimming and making your way through this page, if you just read the first sentence of every paragraph and just kind of kept going, then you're, you know, you as a judge would be getting more or less the full picture. In terms of the sentences at the back of the paragraphs, I'd like to try to keep them fairly short so that they don't just get skipped over. But by having more paragraphs, you're improving the value of the real estate, basically, of your brief. You're getting more first sentences of paragraphs, and that's what the eye tends to go to first, and that's what the eye emphasizes. So breaking things up into a lot of paragraphs can really help you get your point across. And you should try to think about what will this page sound like If the judge just reads the first sentence of every paragraph, will the judge's brain be able to fill in the blanks? Okay. Tip number two, when you are writing one of these briefs, I want you to front load what matters. If there is a fact that you need to win. That is going to go in your intro. What I'd like to do. I call this the microwave rule. A lot of times somebody is going to sit down to read a brief, okay? And they're going to say, well, I don't have time to read all 20 pages now, 30 pages, whatever. I'm just going to read the intro. In. Why are they just going to read the intro? Well, because they are waiting for the microwave. You got five minutes while that microwave is going in the cafeteria. If you can make an impression in that five minutes and that judge or that law clerk has everything that he or she needs to rule in your favor at that point or recommend a ruling in your favor. That is going to shape how that person thinks about the case over the next few days, how that person talks to colleagues about the case. And you're going to be building the impression that you should actually win. So I want you to write an intro. I want you to pave your roadmap to victory in that intro and explain to the judge how to rule in your favor. And I want you to give the judge all the materials that that judge needs in that intro. But five minutes is all you get. It's okay if the intro is long. It doesn't have to be a single page intro, but you should time it. Give it to a colleague, see if it's taking them more than five minutes to read. Okay. Tip number three. I want you to conserve space. And I want you to think of how valuable space is. In a brief, you should be looking at each part of the brief like you would look at a monopoly board. Okay. If you've ever played Monopoly, you know there are some properties toward the end of the board that are really valuable, like Boardwalk, Boardwalk. Um, there are going to be other properties that are not so valuable and the game that you are playing when you're writing a brief or the art of it is you are trying to get the most bang for your buck at every space in the brief. So your high value real estate, your very first paragraph in the brief is going to be high value. The headings. People don't think about this, but the headings are very high value real estate. Why? Well, because they appear multiple times. They're going to be in your table of contents. If it's a longer brief and they're also going to be in the body and they appear in bold or underlined naturally, so the eye is going to be drawn towards them. You probably don't want your heading to just say summary judgement standard. You want to get some message in there because it's high value. Okay, so your introduction is going to be high value real estate and the first sentences of your paragraphs because that's what the eye naturally skims. Those are going to be high value real estate as well. Now there are some properties that you're going to need to develop. Okay. Because naturally in their undeveloped state they tend not to provide a lot of value, but you can make them valuable. The bottom half of a paragraph, naturally the AI skips it. I'm going to talk about how do you improve that real estate and then conclusions as well. People skip them. People expect them to say nothing. They're expecting them to be formulaic and by then the judge is just hungry for lunch because they've they've read your brief and they're ready to move on. So I'm going to talk about how do you upgrade that real estate in your brief. Okay. Talking about conserving space. No string sites, please. I will give you some exceptions, but we're all taught basically out of law school. The more authority that you have for a proposition, the better in practice that simply isn't true. On the left, I've put a string cite from a recent case of mine the proposition You don't need to read all this. The proposition that they really just wanted to make was a party waves an argument for appeal if they didn't make it below. And they they have this whole block for that. This is how I responded. Something fairly snappy. Something. Something short. Much fewer cases, and it's written in plain English. So it's the kind of thing you could just go through it and people think in words and stories they don't think in cases. And if you're writing in terms of words and stories, you want to give authorities, but just pick. You know, and you should do your research. So you should have the five, six, ten cases or whatever, but just pick the cases that you actually want the judge to read. If you pick the cases that you want the judge to read and you just cite one case, your best case for each proposition, the judge or the law clerk will actually go look up that case and read it, and that case is going to stay with them. If you put in three cases for a proposition. The judge is going to probably trust that the proposition has some authority to back it up, but probably isn't going to go read the case. Certainly not all three. And the effect of your later cases is simply to dilute the one good one that is the most on point and that would carry the most weight with that judge. So pick the one you want the judge to read. You're not going to lose just because the other side cited three cases where you cited one so long as you actually cited a good case. Judges aren't beancounters. They're not going in saying, oh, well, you know, the plaintiff cited 17 authorities, but the defendant cited 19. Ding, ding, ding, defendant wins. That's not how it works. Judges want to be persuaded of the logic of a position. So as long as you're picking cases, you want the judges to read, those will persuade the judge. If you. Site too many cases. It actually shows the lack of confidence. If you just cite one really good case that shows a lot of confidence in your position and it bleeds over into this other problem, which is that if you cite ten cases for a proposition, you're basically telling the judge, here's what I think these ten cases mean. I'm not going to explain it all. But, you know, you can go do the homework yourself and and it's kind of like you're just throwing it at the judge saying, here's a bunch of research that I did. You do the work and complete it. Much better to just pick one simple case. We'll give you an exception. New legal theories. If you need the court to adopt a new legal theory in your case. Then you may have to do some sort of a survey looking around, you know, different jurisdictions and trying to piece together, basically showing the court that, yes, there are all these cases out there. Now as a pro tip, if it's not too controversial of a proposition, you could just cite one case that collects a bunch of other cases. So long as it's a good case and you can save a lot of space and you can keep the judge moving through your brief by just cite one case that has a bunch of other cases in it and you put in a parenthetical collecting cases. That'll work for some things. But if you really feel like you need one, I want you to ease the judges pain. Spend some time crafting the paragraph. Try to make it look good. On the right, you have an example of one where I'm trying to convince a court to adopt a new theory of liability in the pharmaceutical context. And. I tell you, I probably spent an hour, an hour and a half just crafting this string site, trying to make it look good, make it fit all on one page. Um, you know, and not be broken up. Just looking. Pretty enough that it wouldn't distract from the argument or the judge wouldn't completely skip over it. And there's a lead in you probably don't want to just state a proposition and then have ten cases following it because that's not very interesting. You don't have anything to pique the judge's interest. So what I did here is that I put in a little bit of background. I distinguish some cases at the beginning where I said state statutes prevented courts from adopting the theory that I wanted in those cases. And then I tried to set the judge up for how are you going to view all of these cases that I cite? I say, but where no statute requires otherwise, judges adopt. And then I put in the name of the theory that I wanted innovator liability. And I remind the judge of what the rationale is. I say allocating the risk of loss to the party in the best position to prevent the harm. And then I launch into the string site. Now, should you have a parenthetical for everything in your string site? Probably not. If the case is self-explanatory and or if it's a case that you have already cited and explained elsewhere in the brief, then you might not need a parenthetical because we don't want the string site to take up the entire brief and we want to keep it looking nice and tight. But if a case isn't completely self-explanatory, or if you think that you need to just massage it or explain it a little bit, then you definitely should. So how I've structured this string site is that I had my lead in to get the judge interested in it. Then I cited cases that I'd already discussed in the brief so that there was some insight on, you know, the judge could say, okay, I've read that, I've read that, I've read that. And then I got into cases that needed a little bit more explanation and I put those onto the back. So think about how you want to craft a string site and don't use it unless you need it. Okay, here's another way that you can save some space in your brief legal standards. We've all seen it. A What happens is firms get a standard template of here's our standard for a motion to dismiss or whatever, summary judgment, whatever it is. And then every time a new case comes out or some law clerk does more research, the firm just adds and adds and adds. And suddenly you got five pages explaining to the judge what a rule of evidence is. Or it's just you are losing the judge's interest. And everybody skips these sections and it makes your brief unwieldy. If the judge has printed out your brief now, they have to flip around in order to find your best argument, and that's not a way to persuade. So what I want you to do is for a familiar legal standard, just hammer a main point. Here is an example of one that I like from. And I use this trick a lot and a lot of different circuits. Let's say that I'm defending against a motion to dismiss in federal court. Okay. You see in the heading, I don't just say legal standard and leave that. I'm trying to use the whole heading. I say legal standard and then I hammer a point on a motion to dismiss. Plaintiffs get the benefit of all reasonable inferences. And I just say that I cite a single published case and then I move on. That's the entire legal standard section. Move on. That is all, folks, because the judge already knows the basic standard and you're just trying to find something to emphasize that could help you. Now in state court, if you have a really good standard, you might want to include a little bit more. Some states are still notice pleading states on a motion to dismiss. So always try to emphasize that in this case. You can see that the brief starts off with just Nevada is a notice bleeding state. That's just to get the court's like mental and antennae up thinking about this. Then I go on to explain what the standard means and try to emphasize and just short, short paragraphs. Notice pleading means that the plaintiff doesn't need to cite any evidence. And there's a beyond doubt standard and no set of facts standard, not just the plausibility standard. But I try to keep it short, keep it snappy. There's only one at each stage. There's only one lead case cited for each proposition. And those are the cases that I actually would want the court to read if the court's interested in the standard. Okay, let's talk about headings. Why are headings important? Well, because everybody, when they sit down to read a brief, they're going to just skim the headings. So I like to keep the headings really snappy and I like to keep them interesting. So the one at the top here, this is from a trespass case where we're talking about, um, hog feces that came from a factory farm. And the plaintiffs alleged that it got on to their properties. Okay. In the heading. I don't just say the waste was detectable or something like that, or I don't just say, Do plaintiffs need an expert witness? I try to get the judge into the entire argument. Plaintiffs detect the hog waste by smearing it, seeing it, feeling it, wet their clothes and getting hit by it in the face. Then I give my conclusion so they don't need an expert to testify. The waste is detectable. The next one is from a same sex parentage case. I put in there. Nothing in Ohio law requires a spouse to fill out the artificial insemination consent form to claim parentage. That's sort of my lead in proposition. And then I have an explanation. The form is the sole responsibility of the physician. As in it wasn't my client's job to fill out the form. It was the physician's responsibility to provide the form. So headings are great. Make them long, fill them up. The judge should be able to pick your headings up, skim them, and then be able to talk to a colleague intelligently about why you maybe have a case. Headings are also important because they become, in some sense, a cheat sheet for the judge. That's what you want when the judge is sitting down to make a ruling. The judge is going to have some kind of a checklist to make sure, okay, did I address this issue, this issue, This issue? If you create a table of contents. That looks something like this. This could become the judges cheat sheet. So what I like to do is craft my table of contents. And really that means crafting my headings so that I'm highlighting key facts, the things that I really want the judge to remember. And then I'm also including everything that the judge needs in order to rule in my client's favor. So I'm going to point out that I think. It's okay to have really long headings sometimes and if you have a case that you must have the judge read, if the judge doesn't fully grasp that case, you could lose. You should put it in the heading. I know that it looks a little bit unwieldy, but I'll give you an example. I love this one. The court should not construe the right to Farm Act to ban trespass actions wherever the offending substance also happens to smell bad. And this would raise a substantial constitutional question under and then a case is cited right there. And what that does is it tells the judge, you have to read this case. We're hanging our hats on this so it works. You get the judge to read the case. I don't think that it's for every brief, but if you have something important, get it in there, Get it up front, get it in the table of contents. Because when the judge is checking off. Okay, did I rule on this? Did I rule on this? Is my decision complete? If they see a case in a heading that they didn't address, they're going to be forced to go back, read that case and really address it and engage with the merits of your arguments on that point. So you're reminding the judge of your key arguments. Okay. Table of Contents. Just watch out for the automatic features and word. Sometimes the table of contents is generated in a weird font. Just be sure that whatever you have converted to PDF and that you're submitting to the court doesn't have for the page number error bookmark not defined. Just watch out for those. Um. Nothing is going to. Well, I shouldn't say nothing, but it really detracts from your brief. If you don't have a clean looking table of contents because you want that to become the judge's cheat sheet. Okay. Always go through and just cut out your worst arguments. Yeah, this is again, this is about saving the judge time, but it's a win win proposition because your brief gets shorter. That's good for the court. And then it's better for you because if, let's say the judge has 20 minutes to read your brief, the judge is going to spend more of that time engaging with your best arguments. If you have two arguments, that's fine. Three arguments can get to be a problem because. There's always going to be some argument that's going to be tempting to overlook. So like two arguments. Three can be a problem. And I'll show you what happened in a brief that I did. So this was a case where I represented a plaintiff and the other side had filed a motion to compel arbitration. And I had three arguments against arbitration. The trick in this case is that we'd actually already been to arbitration before the defendant had failed to pay the arbitration fee. And so we had refiled and we went back to court because the American Arbitration Association told us, well, the defendant hasn't paid the fee, you're entitled to go back and file in court. So I had three arguments. One was that the defendant, by failing to pay the fee, had breached the arbitration contract, so he should be allowed to go in court. The second was that the terms of the arbitration agreement sorry, the terms of the arbitration agreement actually incorporated the rules of the American Arbitration Association and the American Arbitration Association had decided under its rules that we were allowed to come back to court. So if you just followed the arbitration contract, we should end up back in court. And then my third argument was that the defendant had waived the right to arbitrate by being too slow to pay the fee. Okay. Had three arguments and it turned out this was a mistake because you know what happened. Well, that second argument, which is that if you just follow the terms of the contract, my client has the right to be in court rather than arbitration. That is a great argument. And that is a that's a very compelling argument. But it was sandwiched between breach and waiver, which were two very familiar arguments to the judge. So the defendant, in its reply brief, entirely ignored that middle argument. And then the magistrate seven page opinion, which was very thorough on arguments one and three breach and waiver. Also just completely didn't address that middle argument. So if I just dropped the third argument, which I probably didn't need, which was waiver, then the magistrate would have been forced to engage with a better argument. So obviously there are going to be cases where you need three arguments, but where you can two is way better than three because there's no middle argument that could just be ignored. And also, it's less likely that the third argument is just going to get brushed aside as the judge says, okay, well, I've already done the heavy lifting on the first two. I'm going to sort of swat aside the third one. Okay, Well, you have three arguments. They're all your babies. You don't want to give any of them up. How do you decide which ones to drop? You should ask your friends. You should ask other lawyers. You can do focus groups. We do that sometimes. In important cases, we'll bring a group, maybe five, six people in, have them rate the arguments. You can decide which of the arguments you think best exemplifies your case's theme and save that one and then drop ones that you think are a little bit off message. And if you're concerned about waving an argument for appeal, okay, well, you can have that argument in there, but just keep it really short and put it near the back. I would say put it in a footnote, but occasionally an argument made in a footnote is deemed waived anyway. So we just say short to the back. And if you had to allocate your space, I'd say 70% to your best argument, 25% to that second argument and just maybe, you know, 5% for that argument that you just don't want to drop for purposes of appeal. Okay. Well, let's move on to we've talked about how to save the judge time and keep your brief snappy. Now let's talk about how to make your brief fun, enjoyable and likable. Okay. What what is it that people remember? Well, they they remember things that relate to their senses. If you want the judge to be talking about the case a year from now or even a month from now, you have to provide some sort of a hook that is memorable. So. I try to think of it this way. If it relates to the census and it it it really will carry a lot further. So. Okay, here we see a pizza on the right. And then on the left we have a piglet. You're probably wondering already, okay, what do these images relate to? Let's talk about it. Well, so this is a case that I had in front of the Nevada Supreme Court. This actually resulted in A70 victory in the Nevada Supreme Court for my client and our brief. We tried to make it memorable in the introduction. We tried to talk about things that the judges would remember and relate to in everyday experience. So the opening sentences, Glaxo Smith Kline, that was the defendant, taught to generations of Nevadans or Nevadans, I should say, to take Zantac with heartburn inducing foods like tacos and pizza. That is just going to get a little bit of flavor into the brief. For almost 40 years, GSK's television ads made Zantac the household name in Heartburn Relief. If you want a safe drug that doctors trust, take Zantac. When that when that pastrami on rye catches up with you, take Zantac. If you're missing out on taco night, take Zantac. But two years before the first commercial aired, GSK knew that Zantac causes cancer. That's from the successful brief that we had. And I love that line which we took from an actual Zantac commercial. When that pastrami on rye catches up with you take Zantac because it's just it's gritty and it brings the judges into the case and it gives them something that they can talk about and that they want to talk about the ideas you want the judges to like your case. Okay, Let's talk about the Pigs case now. So this is from the brief that I mentioned about hog waste and trespass. So in this introduction, I'm trying to get evidence up front and I'm trying to bring in those five senses. So what I say here, I've got these bullet points, okay? What is it about Hogwarts that's important? Well, you can watch it. You can watch the spray field mist, settle on yards and houses. You can feel the mist, dampen your clothes and skin. You can see the dingy film building up on a house. You can watch waste leaking, you can touch and you can smear it. You can smell it. And it's all about having in some sort of experience. So. I like to try to get all that evidence up front. I like for it to be tactile. And then after that, once you kind of get your best. Tactile connection up front. Then immediately start to transition into letting the judge know where the brief is going. Okay. Let's talk very briefly about what I call the Red Dog mine strategy. Red Dog. Mine comes from a case that John Roberts wrote when he brief that John Roberts wrote when he was an advocate. He was representing the state of Alaska against the Environmental Protection Agency. And it was a classic federalism dispute. Who controls the regulation of this mine? Alaska. The state or. The the Environmental Protection Agency, state versus federal. So what did John Roberts do in this case? Well, he tried to create an emotional connection with the local nature of the mine. It was called Red Dog Mine. And so in his statement of facts, he explains, how did Red Dog Mine get his name? He talks about a pilot discovering the Red Dog mine. He says although the pilot died before, the significance of his observations became known, basically that the the mine was red. His faithful traveling companion, an Irish setter who often flew shotgun, was immortalized by a geologist who dubbed the creek that Baker, the pilot, had spotted Red Dog Creek. So. When asked why he did this, he said, well, you know, you want to tell a story and you want to make it interesting. You have to give a story. You have to give a hook, something that interests the judges and makes them remember your case. It might not be entirely legally relevant, but there should be something. Okay. There are a lot of boring cases out there, even if they're boring. Try to add a little bit of texture. I'll give you an example. This comes this introduction that I wrote in front of a state appellate court is, you know, what you might call a fairly boring banking dispute had to do with, you know, paper and choice of law and all kinds of things that probably people aren't that interested in. But I still found a way to try to give the brief a little bit of texture. So. After mentioning that it's a decade long dispute about something financial in nature. I then moved on to point out that one of the defendants, US Bank, was headquartered on nearby Walnut Street. That was relevant to the case because there was some issue of, okay, you know, where should this lawsuit be taking place? But I picked Walnut Street here because it was a place located. Literally five minutes walk from the actual courthouse. And I knew that it was a street that the judges who were in Cincinnati would be passing every day. So the thought is, if I just at least plant that little bit of texture in there, then maybe when they're walking up and down Walnut Street, maybe going to get lunch or get a coffee or on their way to work on their way to their car, they might think more about my case. And it's just a way to try to get a little bit more air time with these judges in their brains because there are so many cases out there and you want to try to provide some texture to just hook your case in their brain. Okay. Tip number seven. Write a slogan for your case. There's a great book. I highly recommend it. It's Steven Stark's classic Writing to Win. And what Steven Stark says is that you really should have a one sentence description of your case. Basically as if you are a marketer and you are marketing a product, your case to the judges. You want to give them something snappy that the judge will be able to explain to law clerks, to colleagues, to friends and family. Something that will keep them talking about the case. Okay. What's an example of a slogan? I think the maybe the most famous one in law comes from the O.J. Simpson trial. It was a slogan to a jury. It was If the glove doesn't fit, you must acquit. Okay. But, you know, even though that was a slogan to a jury, you can still do it when crafting a brief to a judge. You might want something that's a little bit more law related. Or maybe you might think something a little bit more high brow. And I'll show you how to do that or some examples, but. A slogan. The power of it is so brilliant because even today we all remember the O.J. Simpson trial or, you know, maybe if you're really young, you don't. But what was happening there is that there was a glove that was found at the crime scene. Uh, and the defense had O.J. Simpson, who was accused of murder, try on that glove. And, you know, of course, there's a lot of speculation about, well, you know, was this glove really the size any more that it should have been, or was OJ's hand swollen or whatever? But at the end of the day, it looked very painful. O.j. trying to slide his huge hand into this glove. And the defense said if the glove doesn't fit, meaning it's not OJ's glove, you must acquit. Um, and it can be fun to try to make your slogan something catchy that evokes some of these great slogans. I had a friend of mine who was a defense attorney in Alaska, and he had a case that was a robbery. But the way he was defending his client was. Noting how far his client would have had to run in -20 or -30 degree weather after completing the alleged robbery in order to make it to safety. And his argument was that it was implausible that his client had actually made it that whole distance without getting frostbite. So his argument to the jury was, if he's not frostbit, you must acquit. And it's the kind of thing it catches in people's mind because it evokes some of these great slogans that they remember. But I'll give you an example of a more high brow slogan, if you will. So thinking back to that banking dispute that I mentioned just a few slides ago. Here's an example of a slogan that you can put or that I put in this brief. I said, Well, allowing banks to win on a particular kind of motion after having litigated carelessly would allow those banks to crush their their less affluent adversaries under a pile of motions. So I developed that as a theme. It's sort of an emotional point and I cited it. Kid you not if you're looking at my brief. If you just look at the table of authorities, I have a total of six times that I cited that particular case over the span of maybe about a 30 page brief. So once you develop a slogan, you want to present it, you want to kind of hammer it again and again. The slogan doesn't have to be exactly your legal point that you're trying to make. You just want to. Make it something that will stick in the judges minds and will impress upon them maybe the the sense of justice type reasons that your client should win or deserves their day in court. Okay. Tip number eight. You should try to be telling a story. When you sit down. Think about the fact that judges, just like all other people, love a good story. You want to pick some archetypes, basically some roles you, you know, heroes and villains. Maybe these are a little bit trite for the modern brief. Sometimes they're not. Sometimes you do have an outright villain. Usually people are a little bit more complicated than that. But you can think two ancient archetypes. You can think too, like David and Goliath stories. But you can also draw on something that's a little bit more modern. People have seen movies like The Social Network, if you're dealing with young entrepreneurs. People. And, you know, I don't know that it's as powerful now as it was 5 or 10 years ago, but you can analogize the situation in some way to like the Enron collapse if you're talking about irresponsible business practices. But you should have some kind of archetype for each person in the story and you should know what it is that you're going for and the effect that you want to achieve. You want to have your statement of facts draw out a narrative. You want to show the people's actions. You want to show their motivations. Now, you don't want to necessarily call them out. You don't want to say so-and-so was a greedy, no good banker. You want to suggest more subtly that doing some action would have a financial benefit for them, or that they were motivated, motivated or incentivized to behave in a certain way. When you're thinking about the story. I want you to not be thinking about just responding to the other side's points. Maybe you've gotten a motion to dismiss and your temptation is to sit down and write a brief where you attack, attack, attack. That's not what I want you to do. Don't just get into combating the other side's arguments. You want to create an entirely different narrative and universe. Where. It. There's some compelling world, almost like if a person were to sit down and watch a movie or a play or read a good novel, they're going to be drawn into that universe. And at the end of the day, legal points aside, and we'll get into how to tie in the legal points. But you want to make the judge pick between two different sets of stories that like ships passing in the night, just see things completely differently and they're from completely different perspectives in. If the judge feels like they're just ruling against you on some tiny legal point, then and they think that that is what the dispute is about, that's easy for them to do. They make legal rulings all the time. But if they have to pick between different universes where the storyline is completely different, that's going to make them uncomfortable, saying, well, this is a narrow legal issue. It doesn't need to go to a jury. I can just dismiss this case or grant summary judgment or whatever. So I want to give you and before I move on to the next one, I kind of want to give you an example of that. I had a recent case in a Nevada state court. The client was suing Airbnb for a drive by shooting that occurred at an Airbnb and. Of course, the defense filed a motion to dismiss that was based on this idea of, well, we're not responsible for the criminal actions of a third party. And that's, you know, it's a legal point. Rather than respond to it. Just on that legal point, the brief that we wrote built this incredible universe of to draw the judges in. And we used a lot of newspaper articles to try to put some flesh on the bones, basically showing that, okay, well, what is Airbnb and what does it do? It is an online platform, but it's a lot more than that. It is an organization that creates a network of contracts with independent providers around the nation to create what we call ghost hotels. We got that out of a newspaper article. And what is a ghost hotel? Well, it's a hotel that has no staff. It has no security. Um, it might be a place where alcohol is served. It might be functioning as a mini bar. It might be functioning as a mini nightclub, depending on who's invited there. But at the end of the day, it's this reckless business model where you're setting up hotels in the middle of residential neighborhoods that have no security and no staff, and there's nobody there to call the police when things get out of hand. There's nobody there to make sure that people are carded when they order alcohol And. That starts in an entirely different universe and with an entirely different set of of premises. Then the other side's argument, which is, okay, there's a random drive by shooting and this is, you know, all of all about. Just a narrow legal issue of foreseeability of criminal acts. You want to be playing in a different universe where you are building the story in control of the narrative and in control of the rules. So this leads into my next tip, which is you should be building your army first when you are responding to the other side's arguments. You should be thinking about it as a psychological battle for the court's mind. If you. Start your brief by saying defendants arguments are fallacious and wrong. Okay. Well, you're basically firing shots without having built any weapons. Um, so you want to avoid skirmishes until you have stated your affirmative case? You want to have given the judge plenty of reasons that you have a case that deserves to be heard. You have a client who, you know, has suffered that injury and and you want to be showing, showing, not telling or showing, you know, but you want to show why your case is important. And only once you've built your universe and you've drawn the judge in there sitting there, they're reading it. They're nodding along. You haven't said anything outlandish. You haven't said anything that they might have reason to to really disagree with. And it's only once you reach that point that they're nodding along with you that then you want to engage the enemy and start addressing the other side's legal arguments or their finer points. If you come out of the gate swinging, all you're doing is getting up the judge's guard and getting them to a point where they are. Looking at the case and they're already arguing with you in their head. If somebody comes up to you on the street and just starts making a political argument, for instance, at you, all you're going to do is start arguing with them. I mean, that's the natural human reaction. Or maybe you're just going to walk away because you don't want to engage in that sort of thing. But if somebody comes up to you and says, Hey, I want to tell you about an experience I had get, you know, and draws you into a narrative and you feel for that person. And then when they make their argument political or legal or otherwise, you're feeling for that person and you're not going to just swat them away and say, you know, get lost. I have my own opinions, so don't come out of the gate swinging too hard on points. That could be controversial because you're just going to get the judge arguing with you in the judge's head. Okay. So I want to give you an example of two different briefs that address the same point. So how do you do the psychological method that I've described? Well, the first one way that you can do it, you can start by framing the purpose of the doctrine that the other side uses. You can say, you know, okay, so so in this one, the police had argued that they should have immunity under something called the discretionary function doctrine. They should have immunity for having encouraged a person who was high on fentanyl to be on his way. And of course, that person who was high on fentanyl crashed into the plaintiff's and the and the plaintiffs sued the police. So the police argued that, well, the decision of whether to arrest somebody who's high on fentanyl or to turn them back loose on the road, that's really a discretionary function of the police and they can't be held liable for it. So a good a good way to try to deal with something like that in a motion to dismiss frame the purpose. So in this brief, okay, well, they have this doctrine and it's to allow government officials to make decisions regarding social, economic and policy choices. Then try to, you know, slowly highlight, okay, what are the difficulties that they might have in that kind of an argument? Well, not every action by police is susceptible to policy analysis as that document as that doctrine requires. And, you know, give some examples of that to fit within the doctrine. The official's choice must be related to at least plausible policy objectives. Then finally, transitioning into not all police decisions about arrests involve important policy choices. So you can see there's sort of just a slow build up where you're priming the judge to believe your argument and your side and only then launching into. The. It issues of, you know, what what is the other side arguing? And in fact, after doing this sort of priming exercise, the brief then heads down into talking about our affirmative case, which is okay. The second amended complaint makes clear that the defendants in not arresting this man who was high on fentanyl, they were not motivated by any policy objective. They had other motives, such as reducing their paperwork workloads. They didn't have any kind of policy justification for encouraging someone to drive drunk. No public policy favors that. And so, you know, building up that affirmative case and really the emphasis in this set of paragraphs is about building up, priming the judge to believe your argument, then making your affirmative argument. But you notice that this doesn't really address it doesn't come out and swing at the other side, take swings and say, you know, they're fallacious and so on. Um, and only once you've built up that mental reserve do you go on the attack. So at that point in this brief, we explained and lightly tried to discredit the other side's cases, distinguish them, say they're nonbinding, and then at the end going for the jugular, saying that, you know, basically reframing the argument, saying that, okay, these officers, they didn't have some sort of difficult policy choice. They they were required to not allow this person to get back on the road. So. That is what I would call a correct psychological buildup. For purposes of comparison, though, I would say don't do it this way and I won't spend a lot of time on it. But this is from a previous brief that was in the same case. Um, it leads with the other side's argument saying that the defendants contend this or defendants assert that it then kind of slightly mocks the other side's argument. Then it launches straight into distinguishing the other side's cases. And then at the end, it introduces the plaintiff's own affirmative arguments. I think that's a lot less effective than building your army first and then charging into the attack. Okay. Last tip, because we're at the end of the hour here. Don't waste your conclusion space if you just have for the reasons stated stated above, that doesn't move the ball forward. You just want a short recap of your theme. Here's an example of a conclusion rather than just saying, you know, for the evidence above or for the grounds stated above. Just a very brief sentence. Plaintiffs have evidence supporting each element of their claims. And. Then just a brief. A brief little explanation, reminding the judge about an on point. Fourth Circuit decision. That is working a lot better than just for the reasons stated above. Because you're at least getting a little bit of mileage out of that last bit of real estate. You can also have a longer conclusion. This is from that finance case. We hit the slogans again at the end and we had a lot of bullet points. Just recapping all of the emotional reasons or procedural reasons that the court really ought to rule in our favor here. So long conclusion can help. If you're doing sort of a summation, I definitely recommend bullet points in an appropriate case where you have a lot of reasons. Okay, Final thing I'll say before I let you go, if you want to get better at writing three books that I highly recommend. Point Made by Ross Guberman The Art of Advocacy by Noah Messing and then Writing to Win by Steven Stark. And then lastly, if you just want to make your writing snappier, there is a a product that I like to use. It's a Microsoft word Plug in that for students. I think it's free. I think for attorneys it might be $300 a year, but it's called brief catch and it actually will go through, highlight your sentences and find any legalese and just help you to reduce the amount of legalese and talk plainly. So thank you very much. If you have any questions, feel free to write to me at my email or reach out to me. And I want to thank you all and best luck out there as you write and try to convince the court to give your plaintiffs their day in court. Thank you.

Presenter(s)

JHJ
Jonathan Hilton, JD
Partner
Hilton Parker LLC

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