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  • Writer's pictureMary Watson Smith

Judges Don’t Want a Short Memo; They Want an Easy to Read Memo

Updated: Jan 26, 2021

For my inaugural blog post, I thought I’d tackle what I think is the biggest legal writing misconception among lawyers generally, even lawyers who are otherwise really fantastic legal writers. Because the local rules in many jurisdictions establish page limits for certain pleadings or briefs, lawyers think that what judges really want is a short memorandum or brief. The thought is that judges are busy, they have a lot to read, and the fewer pages you make them read, the better it goes for you. As someone who has clerked for four different judges over five years, I can tell you this is not true. Judges don’t want a short memo; they want an easy to read memo. Let me explain.

What judges (and their clerks!) want when they pick up a brief or memo is to be able to read it from beginning to end without having to flip back and forth between the pages. For instance, if the judge has to stop reading your argument/analysis section to flip back a few pages to read the language of a statute, then you’ve made the judge’s life unnecessarily difficult and you probably have an annoyed judge on your hands. Sometimes legal issues are tough, but reading an attorney’s brief shouldn’t be.

Below are some tips for making the legal writing you submit to the court more judge-friendly:

(1) Footnotes are your friends. Use them. For instance, if you’ve already quoted the text of a code article in the body of your memo but your argument references the code article again, add a footnote that includes the relevant language: “For the Court’s reference, La. Civil Code article 3454 provides...” Think of a footnote as an invitation to more information. The judge may have a photographic memory and may not need to be reminded about what the article says. If that’s the case, the judge will just keep reading. If that’s not the case, then the judge doesn’t have to go searching to follow your argument.

(2) Quote the record or a statute rather than summarizing what you think it says. Judges are not interested in your summary. They want to know what the relevant authority actually says. Remember, a good clerk will always check your work so make sure you are accurately quoting the record/the law.

(3) When you’re drafting an opposition, track the organization of your opponent’s brief/memo (if at all possible). Even though the original brief from your opponent and your opposition will be filed at different times, the judge will probably sit down and read them at the same time. The judge may even read your opponent’s argument on one issue and then flip over to your memo to read your response to that argument. You make the judge’s life so much easier if you clearly organize your brief in such a way that it tracks each of the points your opponent makes. In that vein, I’ve seen excellent writers, for the sake of making their brief shorter, begin their briefs by saying something like, “assignments of error 1, 3, 5, 9, 15, and 20 are not preserved” and then go on to address the remaining assignments of error in whatever order makes sense to the writer. Again, shorter is not better. It’s much easier for the Court to take each assignment of error in order, even if the brief will be a little longer if each of the unpreserved errors have separate headings. If you have to depart from the order dictated by your opponent’s original brief, then make it clear to the Court that you’re departing from that order and make it as easy as possible for the Court to navigate.

I’m not suggesting that your legal writing should be unnecessarily long or that your argument should be repetitive. However, clarity is extremely persuasive; brevity for the sake of brevity is not persuasive and should never be your guiding principle. All other things being equal, the easier your argument is to digest, the easier it will be to get the judge to “yes!” If the judge can pick up your memo and read the whole thing without stopping, then odds are you have a winning argument!

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