Write Your Papers Like You Try Your Cases
By Daniel P. Barer
Why do litigators who excel at trial, who hold juries and judges spellbound with their oratory and examination, find their silver tongues turn to lead when they write motion and opposition papers? Why do their arguments turn dull, their storytelling disjointed, their verbiage impenetrable? Perhaps they view law-and-motion work as a mere side stage, with trial the main event. Perhaps they rely on old exemplar papers, or farm out writing to junior attorneys or contract attorneys, or even to nonattorneys. Yet success in the courtroom can (and often does) hinge on the pretrial, trial, and posttrial written arguments parties submit to judges. There is no reason why an attorney who is great at trying cases on his or her feet can’t also be great at trying them on his or her keyboard.
A judge reading motion papers has many of the same needs as a juror hearing a case presented at trial. Both need information about the facts. Both want guidance on the law. Both need attorney presentations to be brief, on point, and interesting. Meeting those needs is the litigator’s job. And the same skills the attorney brings to bear when trying a case can serve them when they write their papers. Here are some examples. (None of these examples, of course, apply to any of the trial lawyers I work with, all of whom write like angels sing.)