Keep rule statements short, especially for familiar and uncontested rules.
Long-winded rule statements are a primary source of bloat in legal briefs. The “CREAC” formula law students are often taught, which calls for stating and explaining rules before applying them, is partly to blame. Another cause is laziness: stating a straightforward rule and supporting it with citations is easy, so lawyers are tempted to dwell on that task.
Build your briefs around their audience. Synthesize, organize, and trim rules, presenting only what the judge needs. Whether you should explain a rule or merely state it and move on also depends on what the judge needs.
Familiar rules don’t need to be explained.
Simple rules can be stated in one or two sentences and backed by a single citation to authority (which I’d put in a footnote); anything more is filler. For many legal issues — especially procedural or evidentiary ones — the parties agree on which rule applies and what the rule says. When that’s so, state the rule quickly and move on.
For example, this is a straightforward proposition supported by one unexplained citation:
An order granting an anti-SLAPP motion is reviewed de novo. See Flatley v. Mauro, 39 Cal. 4th 299, 325 (2006).
By contrast, your most controversial propositions might need to be supported by several citations. You will need to explain your reasoning and show why the authorities you cite compel the result you want.
Here’s an effective, single-sentence legal standard section for a brief opposing a motion to dismiss:
In ruling on a motion to dismiss for failure to state a claim, courts assume that the facts alleged in the complaint are true, then ask whether these facts allege a plausible claim for relief under any legal theory.1
1 See generally Ashcroft v. Iqbal, 556 U.S. 662, 667–84 (2009).
You can add more rules if they become relevant. For example, if the defendant moves to dismiss your complaint based on evidence drawn from somewhere other than the complaint (and not subject to judicial notice), you can add the rule barring that move.
Save most rule statements for the argument section.
A standalone rule statement is not an argument; it just supplies a legal premise, which must then be combined with factual premises to make an argument. Instead of writing lengthy legal-standard sections that discuss the law in isolation, it’s usually better to keep rule statements short, then elaborate or remind the court of other rules as needed in the argument section while applying the law to your case.
Here’s a good example:
RedGroup supplied only boilerplate objections to Torey’s requests for admission. But a party cannot object to an entire request for admission unless the entire request is objectionable. Rather, it must object to the part it finds objectionable, then respond to the rest. When it objects, it must state the specific ground for each objection and claim any applicable privilege.
Since RedGroup objected to all the requests in their entirety, its responses disregard these requirements. The Court should strike its objections, order it to provide complete answers, and award fees.
Experienced trial judges have read countless discovery motions, and they will probably skim sections that describe the applicable standards when these are presented separately from the argument. If you are the party moving to compel discovery responses, however, you often want to bring these favorable standards to the court’s attention. To that end, apply them in your argument section rather than reciting them in a legal standard section.
For complex rule frameworks, give the judge a legal overview in a neutral tone.
As with most writing guidelines, exceptions apply. Some disputes — especially complex business disputes of the sort handled by my firm, Rushing McCarl LLP — involve complicated or niche legal issues for which the judge might appreciate a more detailed, treatise-like overview of the applicable legal framework.
For a good example, see the Relevant Law section (pages 19–22) of this motion to dismiss we drafted in a case where a bank sued our client, a trucking company, on the theory that it had committed conversion by buying FedEx shipping routes from the bank’s debtor. The case involved complex issues at the intersection of conversion (a common-law intentional tort) and secured transactions (governed by UCC Article 9, a statutory contract-law regime).
It’s also worth checking out that brief’s table of contents (pp. 8–9), which we used to summarize the argument (though some headings are too long); and the appendix (pp. 41–42), where we included the security agreement’s 237-word collateral description for the court’s reference without letting it eat a page and a half of our brief.
Ryan McCarl is a partner of the business litigation firm Rushing McCarl LLP and author of Elegant Legal Writing (Univ. Cal. Press 2024). For more tips about legal writing and argumentation, subscribe to the Elegant Legal Writing blog, follow Ryan on LinkedIn, and register for a workshop. McCarl’s book is available on Amazon and Audible.
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