Ross Guberman’s “Judges Speaking Softly”

Ross Guberman has a great read over at the ABA sharing the results of a writing survey he gave to judges. Guberman asked the judges to divulge their peeves and preferences for the briefs they have to read each day. The response set is sizable. It’s also refreshingly diverse, covering both state and federal judges at both the trial and appellate levels. 

The results probably won’t surprise you–they don’t reveal any secret persuasion magic. But that’s a good thing. Guberman’s findings confirm that judges want what we all know they want (even if we don’t always give it to them): 

[S]trong, compelling, yet concise introductions; a restrained use of case law, with quality over quantity; a readable treatment of party names and industry lingo; helpful lead-ins to block quotations; a confident and professional tone; modern diction; and more white space, headings, and visual aids.

A couple thoughts about a few of these judicial preferences. There’s a growing awareness that introductions are the lynchpin of good briefs (and probably a lot more important than even the judges know). I talked about the power of introductions not too long ago–reviewing some of the things your introduction can do for you, including priming, framing, and building your credibility–all of which strengthen your entire document. 

Using caselaw the right way is something else we talked about here on the Appellate Advocacy Blog recently. I’ve heard the same sorts of comments from judges as Guberman shares: They are fed up with lawyers who think that a string cite of cases gets the job done. Judges want the caselaw that matters–and they want it explained simply and concisely so that they can see why it matters. 

The professionalism of your tone is yet another point we’ve talked about here. All practicing lawyers will, at some point, struggle to keep the scorn they feel from bleeding out into their briefing. There are just some opposing attorneys and parties who can’t help but act ridiculous. And you want nothing more than to scream at the judge: “They’ve lost their minds!” But it sounds like many judges agree with U.S. District Judge Jennifer Dorsey, who I’ve quoted before: 

Let the judge judge; don’t you do it. A lawyer should paint the picture with true, hard facts describing conduct that will lead the judge to do what the judge does—pass judgment. Don’t usurp the judge’s function by jumping to the conclusion for her.

The block quote point isn’t debatable anymore: Judges don’t much enjoy reading these. And if you do use them–just like when you quote anyone else and give up your voice–you should use tools to guide your readers and keep your connection with them. I talked about this a few weeks ago, too. 

Finally, I love that judges are asking for better formatting, white space, and visuals (bullets, numbers, graphs, and even charts!). There’s a reason that our students today learn from textbooks containing as many images and graphs as they contain writing. We humans love visuals. Indeed, science suggests we process information better when visuals are used alongside text. 

So give Guberman’s article a read. As always, you won’t be disappointed. 

Joe Regalia teaches at Loyola University School of Law, the John Marshall Law School, and practices at King & Spalding LLP in Chicago. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles here.