Harrisburg, PA
Federal Lawyer
(by Stefanie Pitcavage Mekilo)
In modern litigation, written submissions are not just a lawyer’s first opportunity to make an impression with the court; they’re also often our last. Cases increasingly are won or lost on the papers, and trials, for better or worse, are largely a thing of the past. These trends exhibit no signs of reverting. To be effective litigators, we must learn to embrace them.
A crucial component of effective written advocacy is knowing your audience. Judges, obviously, are our ultimate audience. But most often, the first person to read a pleading, motion, brief, or letter filed with the court will be the judge’s law clerk. Though their roles and degree of influence vary from one judge to the next, law clerks usually are the front line in chambers—studying briefs and the record, conducting research, and relaying initial impressions on the outcome to the judge.
During my dozen years as a federal judicial clerk, I consumed tens of thousands of pages of legal writing—some exceptional, some decidedly less so, most falling somewhere in between. In this article, I’ll share writing insights and practical tips gleaned during my time in chambers to help you get and keep the judge’s law clerk on your side.
Start with a plan. The real work of good writing occurs before any actual writing happens at all. After you’ve done your research but before you start drafting, think about which issues to raise and the order in which to raise them. Always start with your strongest argument. The lone exception would be if you have a jurisdictional argument, even if novel or only moderately compelling, because the court must satisfy itself that it has jurisdiction before turning to the merits. Organize arguments logically and efficiently—address threshold issues or elements common to all claims first, before moving into individual claims and disputed elements. Think carefully, too, about whether an issue is worth raising. Ask yourself if your argument has plausible merit and, if it’s a close call, whether the potential “payout” is worth it; the answer may still be yes, but be mindful that kitchen-sink approaches and unsupported arguments waste the court’s time and burn credibility.
Make a strong first impression. The introduction to your pleading, motion, brief, or letter is your first opportunity to begin persuading. Punchy style and a touch of color are great for getting the reader engaged, but if that doesn’t come naturally to you, don’t sweat it; just get the job done. Distill your submission to its essence—the “who, when, where, and how” of the dispute, “what” you would like the court to do, and “why” you are right. Form introductions identifying the “what” without context ( e.g. , “Defendant moves to dismiss Plaintiff ’s Complaint for the reasons stated herein.”) are unhelpful.
Keep in mind that while you have been immersed in your case for months or even years, the court does not have your level of familiarity. Your dispute is important to the court, too, but courts are busy, with some judges managing thousands of cases at once. With the exception of career clerks, law clerks usually are transient, rotating through chambers in one- or two-year intervals, meaning the clerk who assisted the judge on your motion to dismiss may not be the same clerk assigned at summary judgment or trial. Take advantage of this opportunity to acquaint (or reacquaint) the court with your case—but keep it short, sweet, and tailored to its purpose.
Write with your ideal decision in mind. The best briefs we received in chambers were those that were well-organized and well-supported—and therefore easily adapted into an opinion or order if the judge agreed with them. There are a few things lawyers can do to fall into that category:
- Write directly to the assigned judge. Take some time to filter your research results down to your assigned judge. Even if they have not addressed your precise issue, having a sense of the judge’s style allows you to structure your analysis to track their preferred framework. If the judge has written on your issue, remind them with a citation. If the case is helpful, great. If not, try to distinguish it on the facts or intervening case law. Even if you can’t distinguish the case effectively, engaging with it will score credibility points; the judge knows the decision exists
because they wrote it, so you might as well get in front of it. You might still lose the issue, but the court will be more inclined to buy what you are selling elsewhere. - Cite accurately and often. Make it easy for the judge to adopt your argument by providing every citation they would need to support a decision in your favor. Apart from roadmaps, transitions, and conclusions, a citation should follow virtually every sentence. Point the court to the exact page of the case that creates the exception you’re invoking, or the specific “page:line” of a deposition containing what you believe to be a key admission. This is especially critical for big assertions, like concessions. Too often I encountered a proposition like “Defendants concede that prison officials were aware of deficiencies in the prison’s policy,” with a citation to the policy but not the claimed concession.
- Do not make unsupported arguments. The consensus among clerks I’ve spoken to is that the single most frustrating part of the job is digging for case law to substantiate unsupported arguments. An increasing number of judges have amended their practice orders to warn that unsubstantiated arguments will be summarily rejected because courts simply don’t have time to do litigants’ work for them. (This is not to say courts won’t do that work; many clerks still take a deep dive into the case law because they want to reach the right result. But they won’t be happy about it.) In addition to doing justice, the primary concern of most district judges is avoiding reversal. Writing to that concern by thoroughly supporting your argument will go a long way toward making even uncharted positions or novel exceptions more palatable.
- Confront bad authority. Lawyers often hide bad authority in footnotes or wait to address it in a reply. But the court will need to get past that authority to reach your preferred result, so the earlier you provide a workaround, the better for your client. It also conveys confidence in your position and shows the court you can be trusted.
- Don’t forget the “why.” This is the “A” in your law school “IRAC” formulation—the analysis section where you “show your work” and bridge the law you’ve summarized to the result you seek. Countless briefs included comprehensive rule statements and plenty of examples, followed by a conclusory statement like: “Accordingly, Plaintiff qualifies as a disabled individual under the ADA.” It is the court’s job to determine whether the law and facts align to support your position, but you’re doing yourself a disservice if you don’t spend a paragraph (or more) making that link clear.
Aim for “one-read” writing. Clerks will come back to good briefs multiple times as a reference throughout their research and writing process, but your goal should be initial comprehension after just one pass through your argument. You do not want a clerk or judge rereading a paragraph multiple times to understand your point. Some tips for how to achieve this goal follow:
- Provide context before detail. Your introduction section will provide the court with broad context for your argument. But the context-first principle applies throughout the whole document. In the factual background section, it is often helpful to introduce key players, documents, and concepts at the outset. Likewise, when summarizing the applicable law, consider whether a short opening paragraph situating the court within the statutory framework or legal principle is necessary. Probably not for civil rights statutes that federal judges engage with regularly, but less routine claims (say, for example, civil RICO) may warrant a short abstract.
- Use Plain English. Legal writing has earned a reputation for being overly technical and verbose. But draping complex ideas in even more complex language does not advance your cause. “Plain English” writing rejects these conventions, abandoning jargon, archaism, and Latin in favor of clear, direct prose. Plain English should not be confused with informality. It simply means using the most straightforward way of expressing an idea. Some Plain English techniques include:
- Eliminating unnecessary passive voice
- Using strong, precise verbs
- Keeping subjects close to verbs, and verbs close to objects
- Avoiding nominalizations ( i.e. , “argue” instead of “make the argument”)
- Shortening multiword phrases ( i.e. , “in the event that” becomes “if “)
- Varying sentence length and structure
- Targeting an average sentence length of 15 to 20 words
- Connect the dots. Linking techniques are crucial to helping your reader follow your argument. Use roadmaps and narrative-style headings to tell the court where you are going and how a given discussion fits into your broader argument. Start each paragraph with a clear topic sentence and ensure all material in the paragraph relates to and follows naturally from that sentence. (Pro tip: To test flow, pull the topic sentences from each paragraph into a separate document. Does it make sense? If not, reorganize.) Even simple matters of word choice matter here. For example, the best writers keep references to key terms simple and consistent ( i.e. , “Defendant” or “ABC Company” or “Company,” not all three).
- Keep it concise. Page limitations exist for two reasons. Courts are busy, and limitation is necessary for efficiency’s sake. But constraints also force lawyers to write with clarity and precision and to think hard about what information matters. Together, these limitations benefit everyone: lawyers’ writing is clearer and more compelling, and judges receive less paper. Remember that the longest brief is not always (nor often) the best one, and page-limit extensions, while frequently requested, are rarely warranted. Note, too, that, all other priority metrics being equal, a clerk is more likely to turn to the motion with the shortest stack of briefs first.
Mind your manners. Lawyers have an obligation to advocate zealously on behalf of their clients, but too often the noise of advocacy becomes the narrative itself. If opposing counsel has misrepresented a case or fact to the court, it is appropriate to point that out. But consider first whether it is actually an error—are they objectively wrong, or do you simply disagree with them? Even if counsel did err, jabs and charged language will not sway the court. Briefly noting (and proving) the error and then refocusing on the issues goes much further in showing confidence in your position. Likewise, while it is fair and sometimes appropriate to seek reconsideration on a given issue, remain objective and respectful. (It’s been a decade, but I still recall—not fondly—the attorney who suggested our standing analysis was “so bad and so wrong” as to compel an appeal if left unaltered.)
Edit, Edit, and then Proofread. Robert Graves once wrote, “There is no such thing as good writing; only good rewriting.” Too many lawyers get everything on paper, proofread, and file, skipping the intermediate step of editing. When you edit, you improve the overall quality of the writing, in relation to substance, organization, and style. Proofreading, by contrast, is mostly superficial—targeting objective grammar, spelling, citation, and other errors. Failing to edit first misses a prime opportunity to polish and refine your work; to ensure your argument flows logically and your theme carries throughout; and to smooth out rough edges.
Only then should you turn to proofreading. Most people proofread more effectively on paper than on a screen. But if you are stuck with a screen or prefer to save paper, other techniques can help. Changing font size or color can trick your eyes into seeing the document anew. Reading your draft aloud, too, is highly effective; after spending many hours in your draft, your ears will catch awkward phrasing and repetition more readily than your eyes. You can also use an app to read drafts aloud, so you are hearing the words in someone else’s voice. Keep a checklist of your most common errors, and run through it as a final step before submitting any filing.
Finally, do not underestimate the importance of clean work product. Every minute dedicated to proofreading is time well spent. It goes without saying that a clear, concise, and well-edited brief improves the effectiveness of your argument. But a typo-ridden brief is also a surefire way to lose credibility; if you were careless in your writing, perhaps you were careless in your research and analysis too. And if that is not incentive enough, judges are not unwilling to sanction counsel or slash fees for slipshod submissions that make their work more difficult.1
Keep learning. The institutions that train lawyers continue to undervalue legal writing relative to doctrinal courses.2 Legal writing faculty nonetheless are keenly aware of the shift toward motions-based litigation, and they work hard to develop curricula designed to introduce law students to the fundamentals. But a lawyer’s duty to develop as a writer does not end in law school, and the best lawyers remain committed to sharpening this crucial skill set throughout their careers. The writing advice I give most often is to seek out good writing and study it. Take notes of structural, stylistic, and other characteristics you find effective. You will be a better writer, and a better advocate, for the effort.
Endnotes
1See, e.g., McKenna v. City of Philadelphia, No. 07-110, 2008 WL 4435939 (E.D. Pa. Sept. 30, 2008) (reducing fee by 85 percent—$154,161.25—based on drafting errors in prevailing counsel’s filings).
2Amy H. Soled, Legal Writing Professors, Salary Disparities, and the Impossibility of “Improved Status,” 24 J. OF LEGAL WRITING 47, 48–49 (2020) (comparing average salaries among doctrinal professors, tenure-track legal-writing professors, and non-tenure-track legal-writing professors).
Stefanie Pitcavage Mekilo is a litigation associate at Babst, Calland, Clements and Zomnir, P.C. She focuses her practice on complex commercial and environmental litigation, with a particular emphasis on federal trial work. Before entering private practice, Stefanie served for two years as a term law clerk to Hon. John E. Jones III and then for 10 years as career law clerk to Hon. Christopher C. Conner, both in the U.S. District Court for the Middle District of Pennsylvania. Contact Stefanie at 570-590-8781 or smekilo@babstcalland.com.
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