How Not To Be Read

We here at the Appellate Record pride ourselves on providing the best insights on legal writing you'll find anywhere.

And I've said it a million times, we never exaggerate.

We also pride ourselves in talking about ourselves in the plural, the royal "we," when in reality it's just me sitting here tapping the keys.

But I digress.

Today we have the ultimate legal writing tip if you want the court (or any other audience) to avoid reading large portions of your writing. This technique is so effective that,  if properly used, I daresay you could drop an F-Bomb in the middle of a brief and the court would never notice.

Let me know how that works out for you.

Curious? Well, it has to do with telling the court what the cases say rather than telling the court what the cases mean. After the jump, I--we--will explain.

Block quotes.

Yep, that's it. Block quotes. Judges don't read them.

Why? Because they're a laborious waste of time and space in briefs that received too little thought and precious little analysis.

All a block quote does is tell the court exactly what a case says, usually right after you've told the court what a case held.

See the fictional example above.

And the change in margins subliminally signals to the reader, "You don't need to read this part because I just told you what it says anyway."

But it is not the function of a brief to tell the courts what the cases say. They have Westlaw for that. Any prelaw wannabe can manage that.

Our job, and the job of a brief, is to tell the courts what a case means. Why is it significant to this case? Why is it well reasoned or poorly reasoned? Why is it binding or why not? Merely reciting the facts, the procedural history, the holding and providing a quotation does not do that.

Much better to state the legal rules of a case and tie them directly to your own facts. How?  "This plaintiff cannot state a claim for failure to warn of the ravine because a gaping chasm, which (as here) exceeds 500 feet, is open and obvious as a matter of law. See Schmedlep v. Dumfinkle, 685 S.W.3d. 444, 447 (Tex. 2011) ('blah blah blah blah blahbitty blah.')."

But that requires analysis. That requires thought. You can't cut and paste analysis. You can't fake thought. 

Most lawyers would rather die than think.

Many have.