The Appellate Record : Texas Appellate Lawyer & Attorney Kendall Gray for Fifth Circuit & Supreme Court Appeals

Professor Wayne Scheiss's legalwriting.net blog is a great resource on how to (and how not to) persuade as a legal writer.  Recently Wayne wrote a post on the importance of good summaries. 

He noted how useless the usual motion preamble is for a judge looking at a computer screen showing his docket.  If you begin with the "COMES NOW" jargon along with defining all the parties with the inscrutable acronyms that seem to be a trial lawyer's fetish, all you've done is tell the judge what is already on his screen. 

As Professor Scheiss put it:

The information in that opening paragraph tells the judge who the defendant is--already stated in the case style. It says that the defendant is moving for summary judgment--already obvious from the title. And it says that support for the motion follows--obvious to every judge.

Instead, says Professor Scheiss (and Kendall), leave out the jargon and tell the Judge what you want and why you're entitled to it:

Say what you want, briefly, and then say or list why you should get it, in the same order in which you'll discuss those reasons in the body of the argument. 

Professor Scheiss publishes a good example:

William Adair and Tenet Corporation move for summary judgment on the plaintiff's discrimination claim for two reasons:

• They were never the plaintiff's employer under Texas law.
• The plaintiff has not exhausted her administrative remedies.

Be clear, clear enough for the 3 a.m. judge.  Don't hide the ball.  Don't play "Three Card Monty" with the Court. If you win "Three Card Monty" you lose.

But I'll advance an additional reason why a strong summary is important.  Beyond helping the judge, a good summary helps YOU.  It makes sure that YOU know what you want and WHY you are entitled to it.

As an appellate lawyer, it is common to pick up cases where someone else has done briefing at an earlier stage.  In that process, I have seen several cases where neither side gave the poor trial judge any help in hacking his or her way through the jungle to find the right answer. 

I recall one case where there was a defense with two elements and a Supreme Court of Texas Case resolving one element in our favor as a matter of law.  The trial team, however, started all the briefing with the OTHER, weaker element.  The controlling, Supreme Court case did not appear and was not discussed until the end of the argument on the element they listed second.

In another, there was a recent U.S. Supreme Court case right in the center of the fairway for both parties.  The case should have been all over both parties' briefs.  The opening brief by one party only mentioned it once (in a footnote toward the end), the response brief likewise mentioned it only once near the end of the brief, and the reply brief again cited it only once in a footnote.  Both sides argued the facts like they were talking to juries instead of filing for summary judgment.

Obviously, the lawyers in both cases knew about the precedents because they cited them.  But they had not thought through WHAT they wanted and WHY they were entitled to it.  If they had, their briefs and their arguments would have been entirely different. 

A strong summary forces the writer to answer those questions:

• What do I want?
• Why should I get it?

So, start strong.  Summarize.  Summarize for you and summarize for the Court.  The life you save might be your own.