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Writing Bad Briefs: How to Lose Your Case, and Lose Big

Brief Judge Gerald Lebovits is the author of an amusing and insightful article in this month's New York State Bar Association Journal entitled, "Writing Bad Briefs: How to Lose a Case in 100 Pages or More." (via the (new) legal writer blog). Lebovits, a judge of the New York City Civil Court, Housing Part, in Manhattan, and an adjunct professor at Columbia Law School and St. John’s University School of Law, opens by promising that "[w]riting a really bad brief -- a brief so bad you’re sure to lose your case -- is a skill few attorneys acquire ... The reasons you might want to lose are many, and writing a bad brief is a key to losing. For those lawyers who want to lose -- and lose big -- this column’s for you."

Judge Lebovits then delivers on this promise, providing a detailed list of ways that litigators can be sure to lose their case via a horrid brief. Some of my favorites include:

Have a bad cover: Add a border, "preferably with a seasonal motif. Flowers and snowflakes add a great touch. If the court has specific requirements about how the cover should look, ignore those rules. Judges
have little sense of style anyway." Also, make sure to "use a typeface like Old English Text or any other font that looks like hieroglyphics" for your caption.

Style: Try different color ink, like baby blue or pink. "Black ink signals professionalism. Don’t use it, unless you want to win." Avoid the use of page numbers. Judges should know how to count, right? And don’t bind your brief, to increase the odds of pages getting lost. If you must bind it, use a metal clip with razorsharp edges.

Argument: "Don’t organize your arguments. Let the judge figure out what’s important. That’s not your job." And don't forget that a "brief is mystery writing in disguise. Leave the main point for the last line of the last page. You want to stun the judge."

Make it Personal: "Attack the court, opposing counsel, and your adversary with insults, condescending
language, snide remarks, irony, and humor. Destroy them ... Critique your adversary’s writing
skills. It’s obvious you went to the better law school." But throw in some phony deferential terms like “respectfully” just in case.

Confuse Them With Words: Confound with legalese: “aforementioned,” “hereinafter,” “said,” “same,” and “such.” Obfuscate with jargon: “the case at bar” or “in the instant case.” Bore with clichés: “wheels of justice”; “exercise in futility”; and “leave no stone unturned.” And don't forget to frequently use "metadiscourse," which includes phrases like “it is important to remember,” “it is significant to note,” “it should be emphasized that,” and “it goes without saying that.”

Judge Lebovits offers much more in his article, which can be read in its entirety here. Good stuff.

Posted by Bruce Carton on May 28, 2010 at 12:48 PM | Permalink | Comments (10)


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