Make motions more powerful by writing openers that focus on ‘deep issues’

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Bryan Garner on Words


Bryan Garner

Last month, we saw the power of the “deep issue”—a question presented in 75 or fewer words. The question should be worded so that anyone can understand it. (If people can’t understand it, that’s your fault: Remember that good writing makes people feel smart, while bad writing makes people feel stupid.) We focused on how deep issues work with briefs.

But with motion practice, litigators aren’t accustomed to issues or questions presented. Instead, the common practice is to do one of two things:

1. Use the filibustering boilerplate that amounts to congestive throat-clearing—“Now comes so-and-so, by and through such-and-such law firm, and files this motion with the cumbersome name given above, which I’ll now repeat for its full repulsive effect to fill up the bottom-third of this first page under the caption.”

2. Or resort to overheated, emotion-laden invective because it is thought to be the heart and soul of “persuasion.”

Either way, the writer is engaging in time-wasting guff.

A more effective opener involves stating the problem to be solved. After all, what is a motion? It’s a request to resolve a specific problem by entering a specific order.

Let’s see how Type 1 and Type 2 openers in motions can be rewritten with deep issues to improve their power and cogency.

TYPE 1: FILIBUSTERING BOILERPLATE

It’s extraordinary how wedded lawyers are to their old forms, which typically get off to a slow-motion start. Consider this beauty:

TO THE HONORABLE UNITED STATES DISTRICT COURT:

NOW COME Eau Claire Independent School District (the “District”) and Sgt. William “Bull” Ballard (“Ballard”), Defendants in the above-entitled and numbered cause, by and through their attorneys of record, Karr & Stilton, 3300 First City Centre, Suite 1700, Real City, Real State, Real ZIP with Four Extra Digits, and files this the DEFENDANT EAU CLAIRE INDEPENDENT SCHOOL DISTRICT’S AND SGT. WILLIAM “BULL” BALLARD’S MOTION TO DISMISS, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, together with their memorandum in support thereof, and would respectfully show unto the Court the following …

What follows is two pages of “background” beginning with “Defendants would show unto the Court that … .”

In the first 100 words, how much have you learned about this case?

Imagine, though, the deep-issue-type opener to replace that one. It gets us off to a fast start. It has taken me an hour to write this, by the way, by studying all 15 pages in the original motion:

Defendants’ Motion to Dismiss

This motion to dismiss presents the Court with two straightforward issues:

1. Qualified Immunity. Under state law, a law enforcement official loses qualified immunity only if there was “no arguable basis for probable cause to arrest.” Here, the crime-lab report conclusively determined that Bianca Trevino signed a forged high school grade-change request that is the basis of the complaint. Relying on that report, Officer Ballard issued an arrest warrant, and she has sued him for malicious prosecution and alleged Section 1983 violations. Is Ballard entitled to qualified immunity?

2. Vicarious Liability. Under state and federal law, municipal liability under Section 1983 requires proof of (1) a policymaker, (2) an official policy and (3) a violation of constitutional right whose moving force is that policy. Here, Trevino has alleged no such policy or policymaker. Given that she has now twice been granted leave to amend after the deadline for repleading passed, should this court dismiss her Section 1983 claims against the school district?

The first deep issue there is 75 words; the second is 68. The word limit, remember, is the magic number 75.

Can you see how much more effectively we’re now using this invaluable real estate—the bottom of page 1? It’s the most valuable space you have. Why would you want to waste it on regurgitations of meaningless form-book verbiage? Yet countless lawyers do it. I move that you not be one of them.

Words

Illustration by Brenan Sharp

TYPE 2: THE VITUPERATIVE AGITATOR

While teaching an in-house CLE seminar recently, I asked the participants to count the derogatory characterizations of the opponent on the first 1½ pages of one of the firm’s motions. The thing was a record-setter: 33 serious blasts in fewer than two pages. “But isn’t that the essence of persuasion?” someone asked.

“No,” I said. “You’re asking the judge to become empathetically aligned with your position, to walk with you. If you’re excoriating the other side with emotional billingsgate (yes, I’m afraid I used that word), you’re making it hard for the judge to adopt your position. You want to win with cool, hard logic.”

It’s a hard lesson to learn—that a coolly written opener is far more likely to carry the day than a heated one. Let’s see a case in point, from the opening words to an appellant’s reply brief on appeal. Notice how distasteful it is to pick up and read this sort of thing:

Introduction

Seeking once again to dupe this Court and to waste the time and money of OpusTV, thereby meriting the imposition of pretrial sanctions by this Honorable Court, Rembrandt has submitted woefully deficient infringement contentions to OpusTV. Rembrandt’s current violations, outrageous as they are, follow closely on the heels of its previous violations of the Joint Discovery Plan.

The rhetoric there spoils what was probably a good point. With the second and third words, one senses where it’s headed; the fifth removes all doubt.

By contrast, note how well it reads if we eliminate all the foaming at the mouth and use the deep-issue technique:

Introduction

This motion for sanctions, filed regretfully but unremorsefully, presents a single issue:

Last month, finding that Rembrandt had violated the Court’s joint discovery plan 12 times, this Court sanctioned Rembrandt. Last Friday, Rembrandt submitted 10 deficient infringement contentions to OpusTV in direct violation of this Court’s discovery orders of last month. Should the Court impose Rule 37 sanctions yet again, for each of the 10 fresh violations?

The tone is that of sorrow not anger (always the right tone with a motion for sanctions). It’s much more concrete than the other one. That is, it gives the reader much more useful information, and it makes effective use of chronology. Most importantly, it has just the right tone.

Lead-In to a Deep Issue

You might have thought just now: What? “Regretfully but unremorsefully”? What’s that all about? Don’t worry, that’s just me. I try to do something eye-catching right at the outset of any court paper—something to make the judge or law clerk sit up and take notice. You can do that in negative, buffoonish ways, of course; or you can do it in positive, smart ways.

The idea is to do anything you can to avoid looking like a form-book lawyer. While all your competitors at the bar are mimicking one another like silly lemmings, you do something to stand out from the crowd. For every motion, you should tailor-make page 1. Your client does want bespoke motions, right? Not ill-fitting, off-the-rack motions.

Some of the lead-ins I’ve used in recent years under the heading “Introduction” include these (preceding up to three 75-word issue statements):

• In ruling on this motion, the Court need address only the following issues:

• This motion presents the Court with the following issues:

• This motion presents the Court with the following issues—all else being peripheral:

• Although Stevenson’s motion for summary judgment states four issues for this Court to resolve, the Court need consider only a single overriding point:

You get the idea. Then each issue statement is a matter of capsulizing within 75 words the major premise, the minor premise and the conclusion expressed as a question.

Oh, yes: Do end with a question mark. It’s more persuasive that way. You’ll find a lot of lawyers who want to put their prayer on page 1: “This Court should order … .” Why in the world lawyers would think it’s useful to hector a judge at the outset is beyond me.

State the problem to be resolved. Carry through in the middle. Then put your prayer at the end. That’s where it belongs.

Besides, if you’re moving for something and your court paper is called “Motion for X,” the judge will have a pretty good idea that you want X. It hardly helps to begin by saying that the court should order X before you give it any reason.

There’s real power in a question mark—especially if it follows a syllogism.


Bryan A. Garner (@BryanAGarner) is the president of LawProse Inc. and a distinguished research professor of law at Southern Methodist University. His most recent book,

The Law of Judicial Precedent, is co-authored with Judge Neil Gorsuch and 11 other appellate judges. His other new book, Garner’s Modern English Usage, is available from iTunes as an app.





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