July 2007 issue-A Writing Lesson

A WRITING LESSON

Attorney Tom Powell does most of the brief writing for us at Marsh, Rickard & Bryan. In the years before law school, Tom was a baliff for the now deceased Robert G. Kendall III, a circuit judge in Mobile. Tom and "Bobby" Kendall, who had been friends for several years, went to work in the circuit court on the same day in 1984. Tom says that he picked up some excellent future-lawyer skills while working with Judge Kendall, including how to write to a trial judge. Here is one of those lessons Tom learned.

"Go get the file in the clerk's office and see what the heck this is all about," Judge Kendall said, as he handed me a couple of nicely bound briefs that weighed about a pound apiece. I saw that both briefs were "courtesy copies," with cover letters from successful lawyers in established firms. As I walked down the hall, I could not help but wonder why Judge Kendall had not figured out what the heck this was all about by simply reading the briefs. After all, he had been the editor of the law review and was one of the brightest men I ever met.

I sat on one of the benches in the hallway before I got to the clerk's office and thumbed through each brief. They were typed well, double spaced, with many pages of deposition testimony and other documents, nicely separated and tabbed at the back. After reading the first two or three pages of each brief, I could only discern that one lawyer wanted a summary judgment and the other lawyer didn't want him to have it, but I could not figure out what this was all about.

Both briefs dived right into discussions of court rules and case law and how those rules and law applied to the facts and thus the advantage of the respective clients. The defendant's brief spent all of the first three pages re-informing the reader in great detail about the "summary judgment standard." But still, it didn't let on "what the heck" the case was about.

I pulled the file in the clerk's office and read the complaint. The plaintiff was "greatly wronged and damaged" by the act of the "defendant's employee" (probably the yard man), who had "cut, trimmed and otherwise destroyed" some "prominent, heirloom azalea plants" that grew along a line dividing the plaintiff's property from that of the defendant. (This conduct occurred within the City of Mobile, after all, and I noted that the street address of the occurrence was along the famed Azalea Trail.) The defendant's answer indicated that the "unrestrained overgrowth" of those heirlooms had made it impossible to go up his own driveway (near the property line) without scratching his vehicles and that the plaintiff had "failed or refused" to correct this problem despite the defendant's "repeated requests."

Armed with this information, I took the briefs and the court file back to Judge Kendall's office, where he sat at his desk poring through that morning's stack of hand deliveries and other "courtesy copies" of assorted writings. "What did you find out?" he asked me. "It's about some of Peck's azalea bushes hanging over Dodd's driveway that Dodd's yard man pruned back," I replied as I handed over the briefs and court file.

"I practiced law in Mobile for twenty years before I took the bench," Judge Kendall yelled, "and I learned more than I wish to know about fence lines and prized azalea bushes! If either one of these lawyers had just told me that in the first couple of paragraphs, I would have know what the heck this case was about when I picked up their briefs!"

He then pitched both "courtesy copies" into a nearby trash can and went back to reading a letter about some unrelated misdeeds.

The lesson that I drew from the Great Azalea Episode is this: Trial judges are busy people who have less time to read the daily legal chaff than you can imagine. DON'T BE A MYSTERY WRITER!!! Whether you are representing the plaintiff or the defendant, use your first twenty five words or less to tell who is suing whom over what, what relief is sought, and quickly suggest why or why not the relief should be granted.

A plaintiff's lawyer might write a first sentence of a brief in opposition to a summary judgment motion that reads: "Come now the Plaintiffs, who seek damages for wrongful death and serious personal injuries arising out of a car-truck collision that occurred on I-20 when the truck driver lost control, and offer to the Court this Narrative Summary of Material Facts and Brief in opposition to the motion for summary judgment that was filed by TruckCo and its driver." Most judges handled car-wreck cases when they were lawyers and they will "get it." That introductory sentence will set up their memory banks, they can readily discern what your case is about, and they likely will be drawn into the next several pages of your brief to see why you might beat the motion.

A defendant's lawyer who files a motion for summary judgment should FOREVER fight off the irresistible impulse to quote Rule 56 and its associated case law in the precious front of the brief. Put that stuff in the back of the brief, if you must put it in at all, and it's still in your record. And unless there's some recent development of the "summary judgment standard," keep it very short.

If you are writing an appellate brief, the same principles apply with even more vigor. The opening line of your "Statement of the Case" should read something like this: "The Appellant, Peter Piper, appeals from a summary judgment of his retaliatory discharge claim against the Appellee, Dunn Delivery, for whom Mr. Piper worked for forty years."

Another point you should remember is that a brief often will sit on a judge's desk for some time without moving in any direction, but it may sit face-up with the first page exposed. If you can lay out your case and your argument in a nutshell so that it fits on the first page, you could just win on the basis of repetitive viewing.