Write Like A Professional And Leave The Joking For The Judges

“In a recent ruling in a highway construction dispute, San Antonio federal judge Fred Biery cited a range of authorities: Barbra Streisand; Stephen Sondheim; James Taylor; the Pearl beer slogan; and television programs spanning the past 50 years.  

There were nods to the Lone Ranger and Superman, and at one point, the judge wrote: ‘Instead of the ‘X Files,’ this drama could be called the ‘Yuck Files’.’ Idling car engines cause ‘automobile droppings,’ the judge wrote, ‘which the court calls Petro Poop.’”

The Wall Street Journal is not the only news source to take note of a recent trend by judges to write… shall we say… colorful opinions.

These days, it’s not uncommon for judges to use pop culture references, puns, and even rap songs to express themselves. Whether their use of humor is an attempt to make verdicts more readable and understandable, or whether it’s an attempt to quell an overwhelming sense of boredom from the bench, the jury is still out.

What is certain, however, is that humor serves as a double standard in law. For the Chief Justice presiding, all’s fair. But as a lawyer, defense or plaintiff, attempting a stand-up routine for a court case is not a battle you’re likely to win.

It’s not fair, but attorneys are expected by judges and their peers to present arguments that are:   

  1. Clear;
  2. Concise; and 
  3. Serious.

First and foremost, language in a legal brief or in oral arguments, for example, should be plain and clear to understand. Replace technical jargon with more understandable terms. Always offer a defined terms list. And avoid—at all costs—legalese.

Secondly, arguments should be concise. Attorneys are reputed for writing overly lengthy briefs. However, it’s unnecessary to argue a case in fifteen pages when the facts can be presented succinctly in five.

To further bolster this point, since 2009, the number of words per Board of Patent Appeals and Interferences opinion has severely declined. Not only has the average words per opinion changed drastically, but the median words per opinion has also decreased. In sum, the board has become less and less verbose, so it’s likely they prefer you to be as well.

Finally, eradicate frivolity from your arguments. Only serious writing is taken seriously. As soon as a judge perceives a point to be petty, flippant, or needing the adage “all joking aside…” your case is already lost.

So, in your next brief, as tempting as it may be to reference Guys and Dolls, Miss Saigon, or the Wizard of Oz—though we acknowledge that Supreme Court Justice Philip Straniere is a fan—don’t waste the time of judge, jury, and client. The court jestering sentencing trend is not one to stick.

“You wanna waste my time? Okay. I call my lawyer. He’s the best lawyer in Miami. He’s such a good lawyer, that by tomorrow morning, you gonna be working in Alaska. So dress warm.”

(On the other hand, in a blog, you’re allowed to quote Scarface.)

-WB

For more information about professional writing, read “Consequences To Unprofessional Conduct In The Courtroom

For more information on proper documentation methods, attend C4CM’s course, “Bulletproof Documentation: Creating Clear, Concise, Legally Air-Tight Write-Ups

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