By Judge Dale Tipps, Murfreesboro
Judges in the Court of Workers’ Compensation Claims spend a lot of time writing, thinking about writing, and learning about writing. We receive writing instruction at least a couple of times per year and regularly submit samples of our orders to outside writing experts for individual evaluation.
The obvious idea behind all this training is to continue to improve the clarity and quality of the Court’s orders. But there’s a dark side: the more we learn about good legal writing, the more we notice issues with motions and other documents submitted to us.
No, this doesn’t mean that your brief is being graded – I’m no law professor or writing instructor (as my proofreaders will attest). Nor does it mean that I’m going to deny your motion because it contains a comma splice (whatever that is). If you’ve got facts and law on your side, a weak motion will probably win.
But what about the closer case? A brief that is organized, persuasive, and easy to read might give you an edge over a poorly written one. So before you file that next document, consider the following suggestions.
Is there a discernible structure? This sounds basic, but trust me, many of the briefs and motions I receive just bounce from one issue to another and back again. If you’re using headings, they should proceed logically. Also, ask yourself whether they’re just generic headings from some template or whether they actually tell the reader something about your case.
Does the first paragraph (or even the first page) explain the problem in a way that an average reader could understand your position on the first reading? A good introduction makes the reader want to keep going, and don’t you want the judge to be interested in reading your motion?
Think about your sentence length and structure. If you’ve written complicated, lengthy sentences (usually anything over 20 words), show your reader some mercy. Break it down into smaller bites.
What about your paragraphs? Can you use a topic sentence for each one that creates continuity between paragraphs? This will make your reader want to keep going. Also, if the paragraph seems too long, it probably is. Go ahead and make two separate paragraphs – your reader will appreciate the breathing room.
Are you insulting your opponent or accusing them of misbehavior? Unless the issue to be decided is directly related to the behavior of counsel or litigants, you’re wasting space and making the “brief” unnecessarily long. Further, invective or inflammatory language may be therapeutic to write, but it’s irrelevant at best and might actually hurt your case.
Is your analysis clear to the reader? This may be the biggest problem I see. I’ll often read three or four pages of case law and statutes, followed by a single paragraph of “analysis,” which doesn’t actually tie the facts of the case to the legal standard. Help me understand your thought process. State the applicable standard, apply the crucial facts, and then explain why the standard has or hasn’t been met.
Attorneys face many deadlines, as well as clients who are concerned about the amount of time spent on drafting a brief or motion. However, as much as you can, edit, edit, and edit again. This is where you have the chance to make the document stand out. Try to reserve some time to proofread your document. If possible, do this a day or two after you wrote it – you’ll catch more mistakes with fresh eyes, and wouldn’t you rather catch those than letting the judge do it?
These are the kinds of issues I try to consider in every order I write. Although I’m far from perfect, my writing has improved over the last three years, and I believe it’s made me a better judge. Attention to some of these details really can make you a better advocate for your clients.