Maryland Bar Bulletin
Publications : Bar Bulletin : April 2010

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Litigators are busy by nature. As trials approach, time disappears. Motions are an essential aspect of any case, not mere speed-bumps on the road to trial. Motions drafting is a critical aspect of trial. A well-written dispositive motion can eliminate the need for trial altogether, and a convincing motion in limine can “make or break” a trial when dealing with key evidence or testimony.

THERE IS
rarely such a thing as great writing - only the hard work of thorough revision.

Computers make the physical task of drafting motions much easier. Unfortunately, when time is short, “cut and paste” sometimes replaces well-thought out structure and cohesive argument, and serves to make the final product ineffective. Learning to write requires years of diligent study and application, and lawyers should analyze great legal writing by peers and opponents whenever possible, and take note of the recurring threads. Litigators will never replace war stories of the time a jury returned a favorable verdict in 30 minutes following a three-week trial with stories recounting how a summary judgment order eliminated the need for a three-week trial. Hopefully, this article will focus a few moments on the importance of writing to litigators and how all litigators can benefit by following these simple rules.

  1. A motion’s introduction is as crucial to a motion as an opening statement is to a jury trial. Think of the introduction as opening with the words: “What this motion is about…” The first sentence is your opportunity to grab the reader’s attention – so do it.
  2. Structure is critical in keeping the reader’s attention. Keep paragraphs concise, avoiding “PMD’s” (Paragraphs of Mass Destruction). One point per paragraph makes the reader’s job easier.
  3. Use headings and sub-headings often and wisely. Direct, brief and clear headings make your motion easier to follow. Think of them as signposts alerting the reader as to where you are taking him or her.
  4. Revise, revise, revise. There is rarely such a thing as great writing – only the hard work of thorough revision.
  5. Delete unnecessary words. Qualifying words often water down your point and reduce clarity. Always question whether an adverb or adjective is necessary.
  6. Credibility is earned by acknowledging the other side’s best arguments. Just as credibility before a judge and jury is vital during a trial, credibility before a judge considering a motion is crucial. Remember that footnotes are a great way to minimize and distinguish the other side’s supporting case law.
  7. Overuse of italics, underlining and boldface weakens your argument and distracts the reader. Effective and precise use of the English language will speak for itself, except when litigating in a non-English-speaking jurisdiction.
  8. Discard “throw-away” arguments. A motion composed of two or three strong arguments speaks volumes. In contrast, two strong arguments taped to four flimsy arguments make the reader question whether you value his or her time. If an argument has little or no chance of success, leave it out.
  9. Long sentences are confusing. Break long or disjointed sentences up whenever possible.
  10. Use simple, short words whenever possible. Plain English is easy to read. Why begin a brief with the words “Comes Now”, if there aren’t any trumpets or horns announcing your presence to royalty? With all due respect to our English forbears, welcome to the new world.
  11. Spelling errors, grammatical mistakes and mis-citations will reduce, and eventually destroy, your credibility with the reader. Trivial errors in a motion convey the sense that your motion is not important. If the relief requested in your motion is unimportant to you, why should the judge care?
  12. Avoid the terms “clearly,” “obviously,” “absurd” or cynical and combative language about opposing counsel.
  13. Eliminate clutter.
  14. Use the dictionary and thesaurus frequently.
  15. Know when to stop writing.

One final point: Attention to detail and thorough analysis will help earn a judge’s trust. Use that trust to benefit your client, and never be afraid to propose a novel or common-sense approach to issues that have not been addressed by the appellate courts of your jurisdiction.

Michael J. Sepanik is a partner with Carr Maloney, P.C., and a member of the Attorney Grievance Commission of Maryland’s Peer Review Committee. Along with his trial practice, Sepanik counsels clients on employment issues, professional ethics and construction disputes.


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Publications : Bar Bulletin: April 2010

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