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Win First and Then Go to War: Research & Writing for Oral Argument

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Win First and Then Go to War: Research & Writing for Oral Argument

This one-hour course will provide attendees with a solid foundation for producing compelling written argument for oral argument that is backed by solid research. The course will also provide tips and tricks for producing clear and concise briefs and avoiding common pitfalls that often lead to losing a motion before setting foot in the courtroom.

Transcript

Hi, my name is Bill Friedman and I will be leading everyone through this course, which is entitled Win First and Then Go to War: Research and Writing for Oral Arguments. The concept behind this CLE lesson is that the best way to prevail at oral argument in your practice, in motion practice at trial is to lead with your writing, lead with your written argument. Once you have produced and presented a compelling written argument to the court. Everything after that should be basically gravy. Right. You have already laid all the groundwork. The judge has everything that he or she needs to rule. And you've basically won before you've set foot in the courtroom. We'll also discuss how to best research your writing for that oral argument presentation. So I'm going to begin with this concept of win first and then go to war. That expression comes from Sun Tzu, who was perhaps a medieval Chinese military thinker, philosopher and general. It's not entirely clear whether he actually existed or was sort of the construct of military philosophy at the time. But regardless, his writings still exist to this day, and they still influence military tacticians and philosophers and attorneys such as myself. And the reason for that is that they are. His writings mostly consist of short. A compelling statements that set forth a philosophy. They're not long winded. They're not complicated. Anybody can read them and understand what they mean, even though they've been translated from ancient Chinese to simplified Chinese to pretty much every language on the planet. So with that concept in mind, I'm going to proceed from there to sort of walk through this idea of winning first and then going to war. So the first thing I always think about when I prepare a motion or an application to the court is what is my plan for success? How do I plan to persuasively convey my argument to the judge? You know, as I said, how do I win before I've even showed up? So the first quote I gave is know yourself and you will win all battles. And I'm sure we've all heard the expression know thyself. So a little bit about myself. I am senior counsel at a law firm called the Law Firm in New Jersey. My practice is exclusively in civil litigation. I practice in both New York and New Jersey, where I am licensed as an attorney From 2013 through 2016, I practiced exclusively in the federal courts and now my primary practice is in what we have in New Jersey called the Chancery Division, which is a court of equity in New York. In New Jersey, we still have courts of law which are grounded in money damages and courts of equity which are granted in or grounded in non-monetary damages. I practice both in probate, which is will contest and as well as general equity, which is anything that is not a monetary relief. So corporate shareholder disputes certain types of contract disputes, preliminary and permanent injunctions, nuisance property disputes, that sort of those sorts of areas. Prior to practicing in law, I worked actually as an information technology technician for almost 12 years for companies big and small. And I think that that's actually helped me in my practice in terms of my writing, because one of the things I often had to do was produce sort of technical manuals, sort of instruction manuals for my end users to do certain things on their own. If I was going to do a system wide update or something where I couldn't touch every computer myself. And so I had to put together these sort of short, descriptive but informative manuals that anybody could walk their way through, whether they were a tech savvy person or not. And I take that approach to my legal writing as well. Obviously, if I'm writing for a judge or my adversary, you know, a trained lawyer, I expect a certain amount of expertise. But I try to write in a way that is plain use, plain language. In ordinary terms, I try to avoid law Latin if I can. I try to avoid flowery language to the extent I can. I try to present my argument as if I'm presenting it to a to a lay person who's never cracked a law book. Because if that person can understand my argument, then I know that the judge and, you know, even potentially, you know, down the road, a jury will. So knowing yourself, so other than learning about me, what does know yourself and you will win All battles mean well. It means what is my story? What is the story I am telling? I run on the concept and on the theory that while you need the law to win a motion or to win a case, it is your facts that really will determine whether you win or lose. So when I am writing my brief or I am preparing for trial, the question I ask myself is what is my story? Right? A trial is two competing stories, and whichever story is more compelling, that's the story that's going to prevail. So when I sit down to write my statement of facts, the first thing that goes through my head is Once upon a time. Once upon a time, the defendant did this. Once upon a time, this happened to the plaintiff. The plaintiff took this action that sort of don't necessarily write once upon a time on the page, but that puts me in the proper mind frame to tell a story. And that story is grounded in facts. The theory of my case will come from my facts. What I am trying to accomplish in this application, in this motion, in this petition will come from my facts. So. This quote I chose was if he sends reinforcements everywhere, he will everywhere be weak. The concept is. How much of the story do I need to tell the court in order for the court to draw an informed conclusion? Do I need to tell my entire case from start to finish on the first motion, or do I need to limit my facts to the issues that I am presenting to the court that day? Typically, obviously, I choose the latter. I only want to present the facts that I think the court really needs to have. And again, not again. But I'm not just going to present those facts to the court. I'm going to craft those facts, right? Those facts are going to be carefully constructed to the relief that I'm seeking. I'm not just going to tell the whole my whole client story from start to finish. I'm going to hit the points that I want to hit and I'm going to skip the points that I don't necessarily think that the court may need to hear. Now, that's not to say you omit bad facts or you omit facts that you don't think will help you. And that's something I'm going to come to later throughout this presentation. But what I want everyone to try to keep in mind is if this is my first motion or my third motion, do I really need to tell the whole story? Am I on a summary judgment motion? Well, that's probably what I'm going to need to tell my whole story. Right. That's when the court needs all the facts. Am I seeking targeted relief, some sort of discovery dispute or a protective order to protect certain things from discovery? Well, then the court doesn't necessarily need to hear chapter and verse about everything that happened. And this is important because you have to keep in mind, judges have limited resources. They may have 40, 50, 60 motions a week in a busy law division and a busy and a busy courtroom. They may not be able to give you all the time and attention that you're hoping for. So you need to keep your facts crafted to the moment and to the motion that you're presenting and not necessarily use every opportunity to tell the court your whole story. So the last bullet point I put on here was, you know, the procedural history of the case. Am I going to give the court the procedural history of everything that's taken place prior to this motion or prior to this application? Does it have any bearing whatsoever on on the relief I'm seeking or the legal theories that I'm going to present? And if the answer is no, then I'm not going to waste the court's time. So what do I mean by that? So here's something I want to show, and this is crafted from something papers that I've read from from, you know, that I used to write when I was a young attorney and on papers that I've read from other attorneys. So when I see factual and procedural history as a point header, I wince right off the bat because I think to myself, Why am I going to need to be walked through the procedural history of this case? So if we look at this first paragraph that I sort of snippeted. It walks through this whole proceeding of when the petitioner filed an order show cause seeking to become a guardian of person and property. The initial return date was scheduled for August 6th, but it was adjourned to August 31st to give people time to respond. Then this particular party filed an order show cause prior to the return date. You know, it's just this whole spiel. Then on August 26th, the court signed an order appointing this lawyer as the temporary guardian counsel. Didn't you know, counsel didn't receive the order until August 31st. The order for the return date was scheduled again. Why are we going through all this? Is there something about these dates in this procedural history that's important to the determination of the case? In this particular case, the answer was no. Nothing to do with what we were arguing over. It was just basically lawyerly throat clearing to set out all this information before getting to the facts. So again, you have judges with limited time, with limited resources who are going through God knows how many motions per week. Their eyes are just going to glaze over when they see this. They're going to look at this and they're going to they're going to flip the page because why do they care about all this stuff? Again, this and it just goes on. This is just further information. Oh, there were two return dates and then the court asked for this and then there was a new return date. It was adjourned. And then the court obliged and the lawyer was appointed. And again, I'm not just writing this to, you know, to make a point. This is the kinds of stuff that has crossed my desk in probate litigation. So now that I've gone through my whole spiel about how. This is terrible writing. How would I fix it? Sun Tzu didn't say Smart guy. How would you fix it? That's me. And I call it avoiding the Hemingway effect, which is where you want to. Nobody likes a run on sentence. Nobody wants to go and go and go. So what do they do? They write sentence period, Sentence period, sentence period. So what I took was this one snippet. On August 26th, 2022, the court signed an order appointing Lawyer X as temporary guardian. Petitioner's counsel received the order on August 31st, said order indicated the return date was scheduled for October 7th. How do I make that into a better sentence? Very simple, right? August 26th, Court filed an order appointing Lawyer X as temporary guardian and set a return date period. Full stop. I've turned three sentences into one sentence. I've avoided the Hemingway effect. If you guys don't understand what the Hemingway effect is, you're going to have to look that up. I only have an hour. So. So in war, the way is to avoid what is strong and to strike at what is weak. This is just so important. Crafting your statement of facts, How do I avoid my enemy's strengths and strike at my enemy's weaknesses? Concomitantly, how do I present what is strong and give my enemy as few weak points to strike at as possible? So my most compelling facts go up front when I am writing my statement of facts. My most compelling facts, the most important facts of my case, they're going to come out right away. I'm not going to spend a paragraph on the procedural history. I'm not going to clear my throat. I'm not going to give the court introductions to every single party and the history of the complaint. I'm going to hit upfront with the compelling facts. Is this a discovery dispute? Here's what I asked for and here's why they didn't give it. Here's the reasons. Here's why they're wrong. Now, I discussed earlier the idea of, quote unquote, bad facts. So do I have a fact that I don't necessarily like? Do I have to put it in or can I admit it and still maintain candor with the court? As attorneys, we have that ethical responsibility to show candor. I can't take a fact that's completely inapposite to my main point and not include it. It's got to be in there and I've got to address it. But if it's a fact of the case where, you know, maybe it cuts against my client, if it's not relevant to the motion, I don't have to include it. That's not going to violate my duty of candor. That's just going to be me limiting my facts to what is best for my case, leaving out facts that are irrelevant or at best, tangential. Also, if I can't omit the fact this bad fact quantum, can I rephrase it? Can I find a way to use that quote unquote bad fact to still strike at my enemy? And so what's an example of that? How can I take a quote unquote bad fact and still use it to hit my opponent's case? Well, one example I can think of relatively recently is I had a will contest where I had an unsigned will. Excuse me. Not on sight. I had a will that was signed, but it wasn't signed before. Two witnesses, which in New Jersey is an absolute requirement for admission of a will. But in New Jersey, we do have a statute that allows us to admit a will that isn't properly witnessed. If I can show by clear and convincing evidence that the testator reviewed the will and assented to its essential terms. Now, as part of this case, it was discovered through through Discovery. It came out that several months after my client or excuse me, the testator, signed the will but didn't have it witnessed, he called his lawyer and said, hey, if I want to change my will, you know, if I want to change certain things in my will, do I need to do a whole new will? Or can we just, you know, can I just write it in? And his lawyer who drafted the will said, no, you got to do you have to do a whole new will or a codicil. You can't just write it in. And the other side. My adversaries were thrilled with this. They thought this just completely destroyed my case because, look, he said his intent was after he signed this will, allegedly, he wanted to change it. And I said, No, that's that's a fact that favors me. I don't have to show what his intent was under the statute. Have to show that he read the will and assented to its terms at the at the point in time where he signed it, but didn't have it witnessed the fact that he called later and said, hey, do I have to change, quote unquote, my will cuts my way. It says that he thought he had a will and that he thought he had to change it because he had already assented to the essential terms of the will. So, again, this was supposedly a bad fact that was going to sink my case. And I said, no, this is a good fact. So you got to know the law. You got to look at the whole story. You got to look at the totality of the circumstances and you got to determine, can I use this supposedly bad fact as a strength for my case? All right. So we're going to move on from good and bad facts. And we're going to talk a bit about blustering. And what Sun Tzu said was to begin by bluster, but afterwards, take fright at the enemy's numbers shows a supreme lack of intelligence. So what is beginning by bluster? Well, bluster is overstating or overselling your case through the use of overbroad terms, flowery language and, well, bluster. We should all know what bluster means. Right. So what is a overstating your case? Well, the defendant is plainly guilty. The plaintiff is clearly in the right. Well, if it was so plain and it was so clear, then then why are we having a trial? Why are we why are we engaged in litigation? Why are we writing briefs on each other's arguments and opposing them and replying to them? Because it's not plain. It's not clear. Those are just adverbs. Those are just words. Those Are you overselling your case to the court? The judge isn't going to be swayed by the use of many adverbs in a case. In fact, I generally try to avoid adverbs at all costs if I can. Sometimes they're necessary, right? Consequently, subsequently, accordingly. Those are kinds of go to words that are part of writing compelling argument. But plainly, clearly, you know, aggressively those don't add anything to your writing. The verb should stand on its own. The facts should stand on its own. Your argument should stand on its own. You shouldn't really need to insert these sorts of words that you think make your, you know, make things sound stronger. That's just bluster. And, you know, smart judges and smart lawyers are just going to skip right over. Uh, so also, you don't want to oversell your case, right? You don't want to put down absolute statements of correctness or incorrectness when we all know that the reason we're probably having litigation is because it's not so certain. Right? There's some sort of gray area. There's some sort of problem or dispute that engendered this litigation. So it's not so simple to simply say, you know, I win because I'm clearly in the right judge. Just look, there's no way I'm wrong. The plaintiff, the defendant did everything wrong and my client did nothing wrong. And I'm completely in the right. If you say that, you better be able to back that up with your facts because otherwise you're just overselling and you're losing credibility with the court. The court's going to look at that and say, I don't see it as so clear. And when you walk into the courtroom for your oral argument and you're all prepared to argue the first minute, that word clearly, plainly, obviously passes your lips, judge is going to cut you right off and say, well, I don't think it's that clear at all, Counsel And that's where you don't want to be. You don't want to be on your back foot when you're at oral argument, you want to have already laid out the best case you can possibly lay out. But without going overboard, your facts should speak for themselves. The facts are the facts. And you if you've taken the case and you're prepared to prosecute it or defend it, then you better be prepared to have the facts to back yourself up. When you're in front of the court, you want to tell a story and you want to tell it persuasively, but you don't want to lay down absolutes. Like I said, unless you can back that up. And again, when it comes to our supposed bad facts, don't pretend they don't exist and don't pretend they're good for your case unless they really are. If you've got to take it on the chin with a bad fact, take it on the chin. But don't pretend that it helps you out. If it doesn't. Again, you want to maintain credibility with the judge. Okay, Moving on from that idea, we're going to get to to know your enemy. You must become your enemy. So in my mind, translating that into into law speak, that's just another way of saying know your audience. Who's my judge? Who's my jury? Who's going to be reviewing this case? Who's the arbitrator? Who's the panel? Who's the tribunal? I don't know if any of you have word of the day calendars or you get word of the day emails. I do. And they are both a benefit and a bane of my existence, because sometimes I find words that I love that just perfectly fit my sentence. And I look at those words and I say, There's no way anybody knows this word but me and whoever else got the same word of the day email I just got. So, for example. I wrote this sentence out. Plaintiffs. The decedent's children were distressed by his absegami, fearing that his new wife would unduly influence the decedent into altering his will. And I wrote this because I had learned that the word absegami means a marriage between an older person and a younger person. We used to call a May-December marriage, and it fits wonderfully with fact patterns that I experience in probate court all the time, where older decedent marries a younger second or third wife and the children promptly discover that this this younger spouse has written had them written out of the decedent's will. Great word. No judge on earth knows it off the top of their head. They're going to have to go to a dictionary to look it up. Why would I do this? Why do I want the judge to go have to look up a word that I've stuck into a brief? It may make me feel smart, It may make my sentence shorter, but all it's done is annoy whoever is reading this brief because now they have to go dig up a dictionary. Plain language works the best in my experience. You just have to talk right in your brief as if you're having a conversation with a person who doesn't necessarily memorize words of the day, who doesn't necessarily read every Supreme Court case that comes down, you know, who who perhaps is not up on every single aspect of grammar and English and the English language. You want to use plain language. The only time I make that exception, excluding the word absegami, is where I found one word that would otherwise require me to use several words. Sometimes I will use a, you know, a fancier word as long as I think it's not so outside the realm of common knowledge. And that's just to save time. I think that improves your writing when you can use one word instead of many. If it's if it's a good word, I recommend people use the if you use Microsoft Word, use the thesaurus, highlight your word, hit shift function F7, it'll pop up a bunch of common, you know, replacement words. That can be a really helpful resource, quite frankly, especially if you found you've used the same word over and over and over again in a brief and it's starting to you're starting to annoy yourself by its repetition. Use the thesaurus function. It's actually pretty good. All right. Our next Sun Tzu quote is rouse him and learn the principle of his activity or inactivity. Force him to reveal himself so as to find out his vulnerable spots. I apologize for the use of solely masculine descriptors. That's just the way it came down from from Sun Tzu through translation. So what does this quote mean? What are the vulnerable spots? How do you rouse your adversary? Well, in my opinion. A well-written brief can and hopefully will infuriate your adversary. I have read briefs that infuriate me when I am on the receiving end. It is what I want to do because an infuriated adversary is an adversary who is going to lash out. Who's going to write poorly? Who's going to make bad decisions? Every single part of my papers, every single part of your papers, when you submit them, should be geared towards advancing your argument and give your adversary no quarter and no room to maneuver. If you're preparing a motion for summary judgment and in your New Jersey, like in the federal courts, you have to prepare an enumerated statement of facts. Don't just lay out. Dry facts, you know, make them compelling. You know, don't make argument, but you can use argumentative language in your facts. You can craft those facts so that each fact you're laying out tells your story. There's no reason to be boring in your statement of facts because the judge is actually going to probably look at those statements, those those enumerated statements of material facts, because they have to go through them to see whether or not your adversary has rebutted each one. Because if you do a lot of summary judgment, motion practice at the federal level or in New Jersey or I believe in New York as well, you know, an unrebutted fact gets treated as true for the purposes of a summary judgment motion. So you want to tell those facts? And you want to make them compelling and you want to restrict your adversaries ability to rely on your telling of the facts. I don't want the adversary to use my facts when he's writing or she is writing his or her brief. I want them to do their own work. I want them to look at my facts and say, Well, I can't copy and paste any of that. I can't use any of that. I'm going to have to write my own statement from start to finish, because that's how I infuriate an adversary. I want them doing their own work. I don't want them using my papers as a template for response. I want them to have to draft the whole thing themselves. Uh, okay. So what do I mean? That every single part of your paper should be geared towards advancing your argument? Well, I mean that. You know, not just your brief. If you have supporting certifications, if you have supporting affidavits, if you have supporting declarations from your clients, from witnesses. Um, you you can use those papers to tell your story in a compelling way. You can use those papers not just to lay out dry facts, but without making them argumentative to still tell the story. You know, facts and argument are legally distinct, but sometimes they can sort of intertwine. You know, this is a good place to use adverbs when you have witnesses presenting in their affidavits, their version of events. Theoretically, write these affidavits in support of our motions are supposed to be in the voice of our clients. Now, we all know that we as lawyers have to write and craft these certifications for these affidavits. But that doesn't mean they shouldn't still be in your clients voice. If your client is a blue collar kind of person, you don't want to use a lot of words. If your client is a doctor or a professional, you do want them to use professional terminology there. It's appropriate. So keep that voice in mind, but at the same time, use that document to tell your story. Don't you let when you're writing that document, be cognizant Your adversary is going to go through it and look for parts that they can cite to to make their own case. Nothing's more compelling for me as a writer, as an attorney, is when I can use someone else. My my adversaries, witnesses, my adversaries, clients, affidavits against them. So bear that in mind as you write it, you want to limit their, you know, room to maneuver. You want to keep their keep your writing tight, but you also want to use those as a basis for setting forth facts and telling your story. That's that's what they're there for. Okay. Yeah. And that even applies to if I'm putting in a declaration, right? Or a certification or an affidavit, I as a lawyer, I'm not going to adhere to facts. I'm not going to attest as to the facts of a case. I'm usually doing it just to put in documents or to establish certain procedural timelines if they're important or meaningful to the motion. But that doesn't mean I can't use my my affidavit to annoy my adversary. It doesn't mean I can't use it to express my point of view. So, for example, if there's a particular document that I want to put in, let's say a contract that was breached, I won't say a copy of the contract is an year to as Exhibit A, I'll say a copy of the contract that the defendant breached on X date is the next year or two as Exhibit A, Right. Because I can do that. I can do that without I'm not attesting to facts. I'm just producing documentary evidence. But I can still explain what those documents are Next, as Exhibit B is the email which the defendant admitted X, Y, and Z to the plaintiff. Again, it's what the document says. Language speaks for itself. I can do that. So you can use your attorney affidavits where you which are just for submitting documents, you can still use it to craft your case. And just by way of example. I recently took an appeal on a foreclosure matter. And I wrote, you know, in New Jersey, under the rules, I have to write I have to write the procedural history before I put forth my statement of facts. And I did both. And I liked the way it came out. Even the procedural history I thought still told my story. I wasn't just going to lay out the dry procedural history of the case. I went through every phase of the case and why at every phase the defendant or in this case the plaintiff, the foreclosing bank was wrong and my client was right. And when I got the opposition to my appellate brief, the appellate decried that my brief was so argumentative in my statement of facts that they couldn't possibly use any of them in their brief, and they had to construct their own statement of facts, because I had simply been just too argumentative throughout the procedural history and the statement of facts. And I thought to myself two things. One, it wasn't that argumentative, but two, yes, that's what I want. I want the other side to look at my facts and say, well, I can't use a single one of those because these are going to kill me. I got to write it all myself and try to make it out as best as I can. And in this case, I'm the appellant. So they're reading my brief first. So that's the kind of response you want to engender when you put together a compelling statement of facts. All right, You hit time. That's perfect. Uh, okay. Our next Sun Tzu quote There is no instance of a nation benefiting from prolonged warfare. What is prolonged warfare? In the context of this writing seminar, it is saying in five sentences what you could say in one it is spending. It is spilling pages of ink, citing case law and chapter and verse and and, you know, law journals and you know it. And. And. Law theory when you could be giving the judge the facts and the law. You don't want to just cite case law to the judge. You want to incorporate that case law into your facts. Right. One example, and I'm going to go back to summary judgment. Don't spend three paragraphs. Don't spend a single paragraph telling the judge the case. Law of summary judgment. Any judge who sat on the bench and who therefore has practiced law in New Jersey. They ought to have practiced law for at least ten years. They know the law of summary judgment. They know the the cases. They know the leading cases. They know their state and federal Supreme Court cases. They could cite it to you chapter and verse. And why can they cite a chapter and verse? Because 95% of the lawyers out there always repeat the full summary judgment standard before they go into their argument for summary judgment. It's a waste of time. It is spilling ink where you just don't have to. The judge knows that particular piece of law. And here's a good example of this. And again, I'm basing this off of papers I've actually received and had to go through, and this is based on New Jersey law, but it's really applicable at any level, any state or federal level. So the adversary starts off with this motion is made pursuant to the rule for summary judgment as to the defendants. Now, that says that right on the notice of motion, we already know this is a motion for summary judgment. That's a whole sentence you could have next. The rule is. And then a quote and then a complete block quote from a case from 1954, which isn't even the leading case in New Jersey, going through the summary judgment standard. Again, nothing here the judge doesn't already know by heart. Then we go into. A sort of law review article, right? It's long been relied upon. The standard set forth in Judson there in the court stated if there was even again, again a repeat of if there's even a slightest doubt as to the existence of a material issue of fact, the motion should be denied. Now, please keep in mind. The person who is making this imaginary argument that I've put together. They're moving for summary judgment. They want the court to decide in their favor. And yet they're telling the court. Court If you have even the slightest doubt as to the existence of a material issue of fact, you have to deny my motion. This is absolute madness. This is not what you should be telling the court, even if yes, this is true, but I don't have to tell the court the law on this, much less tell them this slightest doubt as to the existence, which isn't even a direct quote. They just sort of stuck it in there. No, this should not be part of my argument as the Movant on summary judgment. Moving on. You can see that now we get to the actual leading case in the state of New Jersey, Brill versus Guardian Life Insurance, a case that every judge in New Jersey knows by heart. The court's attention is respectfully directed to the case of Brill, in which the Supreme Court adopted a standard. And on and on and on and on and on. Again. This is just throat clearing. It's wasting time. I guarantee you the judge will take one look at this page, lick their finger, put it to paper and flip it, because they're not going to read all of this stuff they already know. And once the judge starts skimming through your brief, you're losing. You don't want the judge skimming through your brief. You want the judge or the judge's clerk reading the brief in full and making notes and understanding the argument and really paying attention to your facts and. A little bit more on this, because I think it's important and I'm going to stress it just because I see it quite literally all the time. This is a law review article. This is just explaining to the judge the law of summary judgment without ever once taking the facts of this actual case and incorporating it into the law. The judge doesn't need a law review article on Liberty Lobby and Celotex and all of the leading cases from the Supreme Court of the United States and the Supreme Court of New Jersey on summary judgment. The judge just doesn't need it. You've just wasted another page. Going back to citing Brill. Not important. So, you know, if you want to, you can read through all this. I'm obviously not going to read it while we're all listening to the seminar, but you can see where I'm coming from on this, I hope. Don't do this. You don't need to. So again, this is a law review article instead of legal argument. Legal argument isn't going through the history of a case and the history of case law. That's a law review article. Legal argument is taking the law as it applies. Taking that law and applying it to your specific facts and telling the court how it should come out based on the combination of those two. So instead of handing the judge a bunch of cases on summary judgment that they already know. We incorporate the law. And here's how I rewrote those. Seven prior paragraphs into one. Plaintiff has amassed and presented to this court copious evidence, quote, so one sided that she must prevail as a matter of law, unquote. Then I cite liberty. Liberty, right. Liberty Lobby. Boom. There it is. Got the case. Supreme Court. There you go. If the case is so one sided, she must prevail. And I've presented that. Conversely, even when viewing the facts in light most favorable to the defendant, he has failed to make the slightest showing that a genuine issue of material fact exists to preclude the court from finding in plaintiff's favor. Boom. There's Brill citing Liberty Lobby. So I've hit all the major cases, or at least the ones that I really need to hit. I've included the proper language. I'm not misstating the law. You view the lights, the facts in a light most favorable to the non-moving. But even looking that way at these facts, he still loses. That's my argument. Now, presumably, I've already set forth the statement of facts that supports these statements in the law, but this should give you an idea of how to incorporate the law rather than just citing chapter and verse to a court. Okay. So again, looking at this this sentence that I wrote, which I like, right, where I incorporated Liberty Lobby, Inc., New Jersey's leading case on summary judgment. The one thing I don't like about this sentence and I just didn't have the time to incorporate it into this brief, is it doesn't actually lay out any of the facts, right. Like I said, I'm assuming this this sentence assumes that my preceding statement of facts supports the argument I'm making. What I would prefer to do when I am writing this kind of a sentence where I'm handing the judge the law of summary judgment and explaining why I should win is incorporate my facts into that statement. Right. The plaintiff is amassed and presented to this court, copious evidence, for example, and then I can list out A and B and C and D, and this evidence is so one sided that she must prevail as a matter of law. And conversely, what is the defendant done? Well, the defendant in response to these facts has, you know, and I can look at that statement of facts that I spoke about before. How did the defendant rebut the facts that I presented? They just. Right. Denied or did they actually give an explanation If they just said, I deny that fact, I can say, well, it's just a it's just a bald denial. They don't actually present any argument. They just say that's not true. Well, that's not sufficient. For summary judgment. You have to actually produce your evidence that rebuts mine. You have to show that there's no question of material fact. And that's the sort of that's the sort of presentation I would actually make, as opposed to just citing chapter and verse of the law to the judge. Right. Because what a judge is going to look to do is to take the facts, apply the law and come to a conclusion. And if you have, you know, this is what we want them to do, this is what we we hope they will do. And in my experience, the judges that read the papers, which is most of them, that's what they will do. So take a look at your facts, figure out a way to incorporate them into your argument. You don't want to repeat yourself. You don't want to keep saying the same thing over and over again. But you do want to take the key facts that you've already laid out and restate them in your argument to the extent that they're necessary. Again, I stress, avoid repeating your facts verbatim. Find a way to incorporate them into your sentence. All right. So I'm going to step away a little bit from Sun Tzu, and I'm going to bring in some quotes from some other preeminent thinkers that I think will be helpful. So this one is from Supreme Court Justice Sonia Sotomayor. Whether you love or hate Justice Sotomayor, she is a magnificent writer and everyone should read her opinions. Again, don't have to agree, but you can get an example of excellent legal analysis. So what does Justice Sotomayor say? She says, Each time I see a split infinitive, an inconsistent, tense structure, or the unnecessary use of the passive voice I blister. I don't necessarily know what a blister means, but it doesn't sound good. So I'm not going to get into split infinitives. That's a little over technical for this presentation. Inconsistent tense structure. I suggest you all look it up. You want to keep your tense the same? Don't keep switching between past and present and future tense. You pick one and stick with it. I stick with either past or past pluperfect. I do not use present tense in this. Absolutely have to. That way, I'm always in the past tense. So what is passive voice? Well, that is the one I want to go through today because it is the bane of legal writing. Every lawyer, myself included, slips into passive voice without knowing it or without even meaning to. Passive voice is where you have no subject acting on your verb. For example, passive voice was not used in my brief. Used. By whom did I not use passive voice? Well, then that's how I should write the sentence. I did not use passive voice in my brief. Passive voice was not used as passive voice. You've eliminated the subject. Taking action. When you use passive voice, you want to use active verbs. Actually, that's a bad sentence. You want to have subjects taking action. You want people doing things right, courts making decisions. You don't want to use passive voice. Everyone hates passive voice. And you should too. I mean it. That's why it's a bullet point. Let's talk a little bit more about it. All right. Here's another good one. He mobilized the English language and sent it into battle. That is JFK discussing Winston Churchill. I've also seen that quoted as Edward R Murrow quoting Churchill. Pick your poison. What does this means? It means use action words and active voice. You want to mobilize your language, the English language, and send it into battle. You want to take your facts. You want to take the law and you want to go to war with them, for example. The defendant's egregious failure to take the slightest care caused plaintiff to spend her final days in agony. You will notice that I did not use an adverb in that sentence. That is all active voice. It is all active words. Action. Words. Egregious failure. That's an adverb. Excuse me. That's an adjective. That's a good adjective. Slightest care. Why did I say take the slightest care instead of just say any care? Well, if you look at the model jury charge for gross negligence in New Jersey, you will see that it is a failure to take the slightest care. That is a basis for gross negligence. So I'm going to use words that I know judges know because judges deliver jury charges all the time. I suggest you take a look at the model jury charges before you write your brief as they pertain to your case. Those words can come in very handy. Again, don't rely on adverbs. They will not save bad writing. They won't make your point any stronger. Clearly the defendant is wrong. The facts plainly favor the plaintiff. If it was so clear and so plain, why are we here today? You want to mobilize the English language and send it into battle for your clients, you cannot attack in the passive voice. Here's an example of it. I wrote these myself. Defendant's word games, obviously intended to mislead, should not be abided by this court. Okay. That's just all passive voice and it's blah. Let's make it active voice. Let's make it persuasive. Persuasive. The court should not abide the defendant's attempt at clever wordplay, which he has employed to mislead at best, deceive at worst. I like that at best. At worst. Trick. I recommend it if you can use it. So that's active voice, right? Who should not abide the court should not abide it, not should not be abided. This court should not abide with the defendant is doing right. This is what I jokingly refer to the defendant, Your Honor, is the worst person in the world. The Defendant Your Honor, is a sleazebag. I can't say things like that at all. All right? It's not proper. It's not showing a proper deference to my adversary. And it's improper for a courtroom setting. But if I write my brief properly, I can have the judge walk away with that impression. I can say it through my papers without having to actually say it or without having to actually use the word sleazebag. Terrible person, awful the worst. Don't have to do it. I can write in active voice and active language and I can explain to the court why I'm right and they're wrong. Okay, so this one is important. A foolish consistency is the hobgoblin of little minds. That's Ralph Waldo Emerson. Or another esteemed thinker. Some rules can be bent, others can be broken. That, of course, is Morpheus from the Matrix. So the key word in the Emerson quote isn't consistency. It's the word foolish. Uh, and this was something that I had a partner say to me oftentimes. Well, it's not just a consistency, it's a foolish consistency. And it used to infuriate me, but he was correct. If you are writing a brief and you are using certain tricks or certain. Should take a pause. I'm sorry. I forgot the word. Certain tricks or. Or. Or certain euphemisms or certain. Certain shortcuts. You have to keep them consistent. Right. Do you like to write 60 Days with a hyphen? Do you write 60 days without a hyphen? Strunk and White might have a theory on that, but honestly, I don't think it matters. But you just have to be consistent. You can't use a hyphen sometimes and not use a hyphen. Others You can't write out the word 60, but then use the number 60. Keep it consistent. If you've set a defined term right, you've come out, you take a, you know, a long name, make an acronym out of it, put the acronym in quotes in parentheses, then keep using that term. Don't switch back and forth, because when you do that, it's distracting. When you don't maintain that level of consistency, it distracts the reader. And you don't want the judge distracted. You want the judge focused on your writing and what you are saying. So maintain your defined terms, maintain your consistency in number usage and hyphenation in those sorts of things. I don't think that there are rules that are so important there as so much as you maintain consistency, right? The rule is any number under ten, you're supposed to spell it out. Well, if you don't do that. Oh well. But if you do, if you if you keep that choice consistent throughout your brief, I don't think you distract the reader at all. Um, citations if you are citing to your state's reporter. For example, we have New Jersey reports and not the Atlantic reporter Then choose one. Don't do both. No one wants to see the New Jersey and the Atlantic or the New York and the Atlantic. Just stick with one. Um, my personal preference. If your state has its own reporter, use your state's reporter. Don't use the regional reporter because why would you. But again, if you choose to, that's fine. Just do it consistently. If you believe when you're setting the Supreme Court, you have to cite US reports and the US Supreme Court reports you don't. But if you decide to, then do it consistently throughout your brief, don't do it sometimes and not do it other times. And the judge starts thinking, Why did they do it this time and not the other time? Is there something important about this particular citation? Just avoid that. Keep your writing consistent. All right. So I'm going to wrap up as far as the quotes go and applying it to writing. And I'm just going to go into what I call some some tips and tricks. And this is probably the most important part of the entire discussion. If you take nothing else away from this, I hope you will take something away from my my, my tips and tricks. So. Don't let this happen to you. Don't make a misspelling in your caption. First of all, in New Jersey, there's no verified counterclaim, but that's another story for another day. Don't misspell words in caps. Well, what happened here? What happened here was the attorney writing this caption wrote very quickly and either proofread without being very careful. Or didn't proofread at all. So how do you avoid this? Well, how does this happen? Why didn't the word spell checker pick up on this misspelling? Well, here's the reason, because Microsoft Word assumes that if you have written words in uppercase, it's an acronym and it doesn't need to spell check them. So go into your options in word. Go to proofing and make sure that ignore words and uppercase is unchecked. And then from there on, word will check your capital words and your caption capitalize words in your caption and it will make sure that you haven't misspelled anything. Something else I like to do is if there is a name like a case name or a plaintiff's name or my client's name, I will. And the spell checker keeps putting the little red squiggle under it to indicate that it's a word that the dictionary doesn't know. I will right click that word and click add to dictionary. And that way it doesn't keep popping up on the page as a misspelling that I find saves me time. You may not want to do that. Your mileage may vary. I leave that up to the individual. Now spell check can and will still fail you. Don't rely on your spell checker. Take a look at this sentence that I wrote. Can you find the typo? It's there. It's just hiding in plain sight. I'll give you a minute. Nope. Let's see. Can you see it now? It might still be hiding on you. So I'm going to put it side by side and I'm going to change the font. So the defendants making of disparaging statements to the plaintiff's client was an act of tortuous interference for which our laws provide a just remedy. There is no such thing as tortuous interference. It is tortious interference. But the word spell checker probably doesn't even know the word tortious, but it certainly knows tortuous. And it has ignored that error and it will not pick it up. And there is a myriad of other words that will pop into your writing where you have missed. You've you've written the wrong word on the page and the spell checker will not detect it. So don't rely entirely on word spell checker. You must do your own proofreading. You can even as I do. Once you feel that you have proofread your documents sufficiently, hand it to another person to proofread and say, Could you proofread this for me? You may want to say, I don't need you to go through my argument. I don't need you to go through my facts. I just need you to look for typos. I find that that is also a helpful suggestion because sometimes you hand your brief to another lawyer and say, Could you go take a look at this for me? And you get back something marked up in blue pencil or red ink? This one's my favorite. This is the greatest typo in the history of law. Typos in federal court. You declare and verify under penalty of perjury that your facts are true and correct. Not plenty of perjury. Again, a word that the spell checker knows it's used properly. So the grammar checker didn't pick it up as a problem. But this is clearly not something you ever want to submit to a federal judge you do not want to declare and verify under under plenty of perjury. Your spell checker will fail you. So before I get to the spell, to the next slide. What's a good trick for catching typos? So something I have learned and it was a trick I picked up from another writing seminar that I listened to, which I am going to impart to all of the listeners here. When you are reading on the printed page or on your on your computer monitor. Certain typos. You're going to miss them. If you've missed them once or twice, you're never going to catch them unless you literally go word for word on the printed page. And that's because the way that our brains work as human beings is they create shortcuts. They create sort of snapshot images. And so when you're reading something on the page for the second or third or fourth time, your brain isn't reading every single word individually. It's sort of clumping them together because it's done it before. So if you have a typo, like plenty of perjury, you know, poor Lin Wood, he may have read this verification 50 times, but if he missed plenty once or twice, he was never going to get it. Um, a good way to get around this little trick of our brains. Change the font, change the font thing on your page, make it bigger, make it smaller, choose a different font altogether instead of times new Roman. Just highlight everything. Change the font. You can change it back afterwards. Changing the font gets our brains to sort of view our our printed paragraphs as if for the first time. And it's just a wonderful trick. I can't impress it upon you enough how helpful it is. So if you're submitting something, it's really important. You want to make sure it's it's it's so clean and brief, you can eat off of it, change the font, go through it one more time, print it up. You'll catch those mistakes. Like I said, the only way you're going to you're going to get them is if you do what a partner of mine used to do, which was lock lock him himself in his office for hours and go word by word by word through the brief to find typos. You don't have the time for that. As a busy lawyer, I still don't know how he had the time for it. Just change the font. It's a much, much, much, much quicker way to go about it. All right, So the Blue book. So I did a several years in federal court practice. Some of you may do federal court, some of you may not. Some of you may find yourself in federal court on the basis of removal jurisdiction. Some of you may have read the rather infamous New York Times article that recently hit about the lawyers who decided to use ChatGPT, the Artificial Intelligence Bot, to help them write their brief and discovered that ChatGPT had made up several cases. Folks. Federal court is the major leagues. You do not want to mess around, as those lawyers have discovered. When they had to go in front of Judge Castle. You want to make sure that your writing is sharp, correct, sighted and fact checked, and you want to use a blue book or you want to if that is what the court rules require, you want to use a legal citation manual and make your citations perfect first because that's what the judge expects to see. And that is what some judges actually require in their individual rules. You want to make sure that your citations match the. To the letter, the citation requirements of the book. That is just a thing for federal courts. So I highly recommend if you find yourself in federal court or if you plan on practicing on it, get a blue book, get a citation manual. Stick to it and stick to it consistently. You want to read all of the rules, you want to know the local rules of the federal court. You want to know the judge's individual rules and you want to follow them. And again, the reason is it's what the judge expects to see. But the other reason is that the judge is going to have a clerk who's probably going to read your papers first, may have more than one clerk. That clerk is going to be an individual who probably went to one of the top law schools in the nation who is used to reading briefs from some of our top law firms, our Amlaw 50 or amlaw 25 firms where everything is going to be cited perfectly, everything is going to be perfectly researched. You don't want them to take a look at your papers and say, Oh God, here's some schlocky solo. Oh, here's some guy at a boutique firm in Jersey. What does he know about practicing in the appellate courts or in the federal appellate courts? You don't want that. You want the clerk and the judge to look at your papers and say, well, here is someone who clearly has been in these courts before and knows what they're doing. Uh, again, I can't stress that enough. So I'm going to take the last few minutes here. I don't have slides on this, but I'm just going to discuss a bit about legal research. I focused mainly on the writing because I think that's the most important piece of it. We've all learned how to do our legal research. We all know how to use Westlaw, Lexus or whatever, or Google Scholar or whatever tool we're using for legal research. I'm just going to say a couple of quick pointers. One is obviously we all know you have to you have to shepardize, you have to cite your case and make sure that it's current. It hasn't been overruled. It hasn't been called into question. You have to look, but not just for that reason you want to find, I think, the cases that have come out against that case, you want to find the negative treatments, read the cases that cut the other way on the same law, but different facts, and make sure that your facts comport with the positives and not the negatives. Or to the extent that there is a negative treatment, see if there's a dissent, see if there is sort of that wiggle room for you to take your facts and still get around the negative treatment of the case you want to rely on. The other thing is, and this sort of goes back to that summary judgment. You know, you don't have to. Cite Liberty Lobby and Celotex and the leading cases exclusively for your point of law. If I am writing a summary judgment motion pro or against, you know, either either in support or opposition, I'm going to look for cases on summary judgment that are close to my facts. I'm not just going to cite Brill versus Guardian life insurance. That's a specific set of facts relating to a specific plaintiff and defendant. We extrapolate that for a point of law on summary judgment, but the facts of that case may have absolutely nothing to do with my case. So what I want to do is if I want to incorporate that law, like I said, I want to write a sentence where the law is part of it, but not not all of it. I'm going to find a case where the facts are somewhat similar, where I have similarly situated parties. Is it a contract dispute? Is it a land use dispute? Is it personal injury? Is it medical malpractice? It doesn't have to be identical, right. It's hard to find identical facts, but I can find similar fact patterns grounded in, you know, personal negligence, grounded in bodily injury, grounded in, you know, easement tort contract, and then use those particular cases that back my facts that have similar facts and came out come out the way I want them to come out and use those cases because then I'm not just writing a law review article, right? I'm not just saying, oh, we want to use facts in the, you know, even viewed in the light most favorable. And here's what Brill says about that now. Now, I have a case that actually says, well, when you have this type of negligence and these types of allegations, summary judgment is appropriate or inappropriate, and then I can incorporate that into my brief. And I think that's that's something not enough lawyers do. We like to rely on the lead cases, and the lead cases are important, but I think it's equally important to find cases that sort of have your facts built into them or baked in that makes the writing flow a lot easier, in my opinion. One more thing on legal research. I find oftentimes that people will find a case that they like for whatever reason and they'll use it. Maybe they like the language of a certain sentence and they want to incorporate it into their brief. And it's and it's great language. But the problem is the case didn't come out the way they want their particular motion to come out right there. The Defendant They like the language in this case, but in that case, the plaintiff one the defendant lost, let that case go. Don't hang on to that case just because you love the language. Because if I'm your adversary and I'm going to look at the cases you cited and I'm going to read them because that's what I do before I write an opposition, I read your cases that you put in your brief and I see that you cited to a case which came out the opposite way, which comes out in my favor. You can bet your bottom dollar that's going to be my lead off point when I write my opposition. Right. I'm going to beat you over the head with the fact that the case you relied upon comes out the opposite way. And I see it a lot. For some reason. I think it's because, again, people sort of fall in love with the language of a case if it works out for them. Don't do it. It's not worth it. You're opening the door to a snarky little guy like me, and I'm going to beat you over the head with it. And the judge is going to maybe bring it up to you when you're standing in front of him or her and say, well, isn't it true that that case comes out the other way? How do you square your case with the case that you cited to me? It's not where you want to be.

Presenter(s)

WF
William Friedman
Senior Counsel
Gaeta Law Firm

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                                                Available until
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                                                • 1.0 general
                                                Available until

                                                July 10, 2025 at 11:59PM HST

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                                                Approved
                                                Credits
                                                • 1.0 general
                                                Available until

                                                December 31, 2026 at 11:59PM HST

                                                Status
                                                Approved
                                                Credits
                                                • 1.0 general
                                                Available until

                                                June 24, 2025 at 11:59PM HST

                                                Status
                                                Available
                                                Credits
                                                • 1.2 general
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                                                May 2, 2025 at 11:59PM HST

                                                Status
                                                Approved
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                                                • 1.0 general
                                                Available until

                                                July 11, 2028 at 11:59PM HST

                                                Status
                                                Approved
                                                Credits
                                                • 1.0 law practice management
                                                Available until

                                                June 24, 2025 at 11:59PM HST

                                                Status
                                                Available
                                                Credits
                                                • 1.0 general
                                                Available until

                                                February 28, 2025 at 11:59PM HST

                                                Status
                                                Approved
                                                Credits
                                                • 1.0 general
                                                Available until

                                                June 24, 2025 at 11:59PM HST

                                                Status
                                                Available
                                                Credits
                                                • 1.0 general
                                                Available until
                                                Status
                                                Unavailable
                                                Credits
                                                • 1.0 general
                                                Available until

                                                June 23, 2024 at 11:59PM HST

                                                Status
                                                Approved
                                                Credits
                                                • 1.0 general
                                                Available until

                                                June 21, 2026 at 11:59PM HST

                                                Status
                                                Approved
                                                Credits
                                                • 1.0 general
                                                Available until

                                                January 16, 2026 at 11:59PM HST

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                                                Approved
                                                Credits
                                                • 1.0 general
                                                Available until
                                                Status
                                                Pending
                                                Credits
                                                • 1.0 general
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                                                June 30, 2024 at 11:59PM HST

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                                                Approved
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                                                  Available until
                                                  Status
                                                  Pending
                                                  Credits
                                                    Available until
                                                    Status
                                                    Pending
                                                    Credits
                                                    • 1.0 general
                                                    Available until

                                                    July 10, 2024 at 11:59PM HST

                                                    Status
                                                    Approved
                                                    Credits
                                                    • 1.0 general
                                                    Available until

                                                    June 30, 2024 at 11:59PM HST

                                                    Status
                                                    Approved
                                                    Credits
                                                    • 1.0 general
                                                    Available until
                                                    Status
                                                    Unavailable
                                                    Credits
                                                    • 1.0 general
                                                    Available until

                                                    June 24, 2025 at 11:59PM HST

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                                                    Approved
                                                    Credits
                                                      Available until
                                                      Status
                                                      Not Eligible
                                                      Credits
                                                      • 1.0 general
                                                      Available until

                                                      June 24, 2025 at 11:59PM HST

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                                                      Available
                                                      Credits
                                                      • 1.0 law & legal
                                                      Available until

                                                      June 21, 2028 at 11:59PM HST

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                                                      Approved
                                                      Credits
                                                        Available until
                                                        Status
                                                        Not Eligible
                                                        Credits
                                                          Available until
                                                          Status
                                                          Not Eligible
                                                          Credits
                                                          • 1.0 general
                                                          Available until
                                                          Status
                                                          Pending

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