Litigators should think like teachers
Judges can be persuaded only by arguments they understand.
Judges can be persuaded only by arguments they understand. A litigator’s first job, therefore, is to chart a path through the law’s complexity, helping the judge analyze the issue correctly and reach the preferred conclusion. That requires lawyers to think like teachers.
A strong litigation brief teaches the legal rules, facts, and analytical steps needed to justify the requested ruling.
When drafting or revising, ask:
What point am I trying to make here, and how does it relate to the rest of my argument and the relief sought?
How would I tell this story to a friend over the phone?
What context does the judge need to understand this argument?
Which parts of my argument might prompt questions or skepticism?
A good teacher captures their audience’s interest, tailors their presentation to the audience’s background knowledge, and introduces new concepts in a structured way.
Assume that a judge is legally sophisticated but rusty on the precise doctrine governing your motion. Avoid stating the obvious, but don’t assume that they remember an obscure statutory framework or the details of a sprawling record. To spare the judge from needing to look it up, provide the key text of any statute or contract provision on which your argument turns.
The goal is to bridge the gap between what the judge already knows and what they must understand to write a reasoned opinion ruling in your client’s favor.
For more advice on writing briefs that judges will understand and be moved to accept, see Elegant Legal Writing chapters 1 (“Core Principles of Legal Writing”) and 9 (“Legal Storytelling”).
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 and follow Ryan on LinkedIn. McCarl’s book is available on Amazon and Audible. Please help sustain the book’s momentum by rating it five stars and sharing Ryan’s posts.
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I like this. I think it’s spot on. As a former teacher, I often think of the principles of backward design when I’m preparing to instruct judges. It’s served me well and takes the guesswork out of preparation.