On Legal Writing, from a California Trial Judge

A reader of our blog, who is a California trial judge, e-mailed this in response to the popping the bubble of authoritativeness post:

As a criminal law trial attorney I thought it advantageous to write in a way that made it easy for a judge to rule in my favor; succinct, good authority, concise arguments. I tried to make every submission under 7 pages. I can count on one hand in 28+ years as a trial attorney reading an opponent’s brief that impressed me or, as you put it, carried a sense of authority.

I had never thought about it in terms of, “authority,” but I think it’s an apt description. The citation to a statute or case was usually on track, but everything else seemed almost always to be the written counterpart to a Jackson Pollok painting. Terrible sentence structure, typos, misuse of punctuation, facts not incorporated effectively, hyperbole, the list goes on. Good, persuasive written arguments do carry an authoritativeness that, for me, equates to persuasiveness. And it often is an unconscious appreciation, you’re persuaded without understanding why.

I can say the same about many appellate opinions I read. And perhaps a majority opinion, especially in a close case, is written to accommodate diverse views of 5 or more, but I usually find minority opinions to be more tightly written and argued, and much easier to digest. Just my sense, may be completely off base.

As a judge, admittedly with only 20 months experience, I have yet to read anything that has impressed me. Some of it is just plain, well, garbage. For years judges in private conversations would extol the superiority of civil law attorneys to me but I have yet to see much in the way of praiseworthy writing there either.

As for oral arguments, even judges can be persuaded by passion, something that it took a while for me to learn as an attorney. And it applies to the most mundane or esoteric legal issues. But there is a fine line that has to be walked and very few trial attorneys can carry it off.

I have listened to one truly exemplary argument, and it was by an attorney arguing to reduce a 2nd degree murder conviction to manslaughter. In over 30 years it was the best I’d ever heard. I’ll never forget it. He almost had me, too. And then his client, a 16 year old girl, stood up, turned to the decedent’s family, and told them that she didn’t kill their daughter. One memorable argument down the drain.

Sorry for carrying on. Effective writing has been very important to me and your post struck a chord.