I’ve written about legal writing extensively on this blog. In the past couple of days I’ve read two separate legal briefs that were simply horrendous. One thing I learned in my two years of clerking at federal court is that this is pretty much the norm. What’s surprising is how much bad legal writing comes from so-called ‘good law firms.’
Here is a tip for you budding students and young lawyers: never cite a case for a legal proposition if the outcome of the case went against the party who was in your client’s position. If you know what I’m talking about then don’t worry: you’re one of the few. If you don’t know what I’m talking about then it’s probably because you’ve never noticed the problem. And that would be a bad sign.
Frankly, I consider this problem one that verges on malpractice.
I’m not talking about citing cases that go against you because your obligation as an officer of the court requires it. I’m talking about carelessly citing a case for a legal proposition that’s easily found in another case that matches the outcome you seek in your motion papers. How stupid or careless do you have to be to cite a case that your opponent would love to have in her brief? The next stupidest thing you could do would be to just send your opponent a copy of the case. But no, you want the gold medal for stupidity so you put it in yours.
Great. Now go find a nice comfortable chair and see if you can poke yourself in the foot too.
P.S. If you want a better practice, start using the 80/20 Principle.
Sure. The more lawyers that know about this the better (unless they are opposing counsel in one of my cases).
hey Ernie…can I include this in the 60 Tips presentation at the Solo/Small Firm Conference? It’s not a tech tip but it sure is invaluable Tom O
My clerking experience was identical. It’s funny how sensitive you get to this issue once you clerk. one of the first things I always do in opposition is point out the cases cited by my adversary in which the Court ruled against the party standing in his client’sshoes. In almost every case, I win those motions.