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August 2009
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October 2009

How to make your summary-judgment motion more effective

In my early years practicing law, I knew lawyers who would file motions for summary judgment not with the idea of winning the motion, but with the goal of “educating the judge” about the entire case. I doubt that the judges who had to decide these motions appreciated the educational opportunity, as they were usually made to read lots of stuff having nothing to do with the task at hand: deciding whether to render summary judgment. Not surprisingly, these motions were usually denied.

If you’d rather write your summary-judgment motions with the goal of having them granted, then you’ll benefit from reading Michael Reitzell’s article, Focus on the Material Facts for a Successful Motion for Summary Judgment. Michael gives good advice not only on how to focus your motion on the facts that matter, but also on how to respond to an opposition loaded with irrelevant factual assertions. The article is written from a defendant’s perspective, but its advice applies just as well to a plaintiff’s summary-judgment motion.

Two great appellate seminars in November

If you’re an appellate lawyer, or if you’re a litigator who does any appreciable amount of appellate work, then listen up. There are two great appellate CLE programs coming up in November.

On November 5–6, DRI will hold its eights appellate-advocacy seminar in La Jolla, California (near San Diego). Here’s a link to my prior blog post about this seminar. DRI’s appellate seminars usually include at least one segment on briefwriting. Thus, this edition will include a presentation on storytelling by Prof. Timothy Terrell. According to the brochure, “Professor Terrell will discuss the rhetorical power embedded in good legal storytelling: choosing among alternative structures of legal arguments and factual presentations.” For more information about this seminar, read my prior blog post, download the brochure, or visit DRI’s web site.

Two weeks later (November 19–22), the Appellate Judges Educational Institute will hold a seminar in Orlando, Florida for judges, appellate lawyers, and appellate staff attorneys. The program will include a panel discussion on how judges think and make decisions, a presentation by Prof. George Gopen titled “A New Understanding of the ‘Plain’ in Plain English,” and a presentation by Stephen V. Armstrong (co-author with Prof. Terrell of Thinking Like a Writer) on effective and efficient editing. To learn more about this seminar, visit the AJEI web site or download the brochure.

One way to make your bills more palatable to clients

Billing clients may seem a bit off topic for this blog. Then again, there’s no denying that bills are important written communications from lawyers to clients. With that in mind, here’s a tip from Jim McElhaney on how to write a more effective bill: stop rounding time entries to the nearest tenth of an hour. As McElhaney explains, “7.82 hours at $436.79 an hour looks a lot harder to challenge than 7.5 hours at $400 an hour. As if somehow it’s exact, so it must have a rational basis.”

Another tip I learned long ago: Write time entries that reflect how the task benefits the client. Thus:

  • Not so good: “Legal research. 4.5 hrs.”
  • Improved: “Legal research to support planned motion for summary judgment. 4.5 hrs.”
Of course, if you can’t explain how the task benefits the client, you may want to question whether the task should be performed at all.

If only his ideas weren’t considered rebellious

The ABA Journal has recognized contract-drafting expert Ken Adams as a “Legal Rebel,” a lawyer dedicated to remaking the profession. Ken’s mission is to reform the way lawyers draft contracts. He’d like to see useless words, phrases, and clauses eliminated, and the remaining provisions translated into readable English. If your practice involves drafting contracts, then you should own a well-worn copy of Ken’s book, A Manual of Style for Contract Drafting, and you should read his blog regularly.

So congratulations, Ken! And congratulations to the ABA Journal, for having the good sense to recognize Ken’s work.

Foreshadowing and the science of persuasion

If your job involves persuading people through the written word, then you should read Something Judicious This Way Comes by Prof. Michael J. Higdon. In this paper, Prof. Higdon explores the use of foreshadowing in narrative, its effect on people’s perception of what they see and hear, and the scientific explanation of how it works. Most important for legal writers, he gives examples of how judges use foreshadowing to make their rulings more acceptable to readers. Lawyers can use the same techniques to make their arguments more acceptable to judges.

Due to its thoroughness, the paper is a bit long—44 pages—but well worth your time. Download it now from SSRN, save it on your hard drive or print out a hard copy, and read it later when you have the time.1


1 Extra points to anyone who spots the foreshadowing in this paragraph.

For Louisiana lawyers: How to go to the front of the line

Many courts, especially appellate courts, process cases in numerical order according to docket number. This means that when you take a case there, you take a number and wait your turn.

That is the general rule. There are exceptions. In Louisiana, the legislature has enacted numerous laws, scattered throughout the codes and Revised Statutes, mandating that certain classes of cases either be decided in preference to others or decided within an expedited time frame. Southern University law professor Gail S. Stephenson has written an article exploring these laws. Here’s an excerpt from the abstract:

This article explores the history of docket preferences in Louisiana, unearths the buried statutes so that practitioners can use them if they choose, examines Louisiana’s procedural rules for requesting and applying the preferences, discusses the constitutional and ethical issues connected to docket preferences, and suggests improvements to the rules that would make them more effective.

Prof. Stephenson has also created this handy list of Louisiana laws requiring preferential or expedited decisions in various kinds of cases (MS Word format).

Telling the law’s story

All advocates should know that good storytelling is powerfully persuasive. Certainly our clients have stories that we should search for and tell. But what we may not realize is that the law itself has its own stories. And when our task involves developing the law itself, we should search for and tell the story that will persuade the court to move the law in the desired direction.

That is the thesis of a thoughtful article by Prof. Linda Edwards: Once Upon a Time in Law. In it, she gives examples of how lawyers in Miranda v. Arizona and Bowers v. Hardwick transformed what might have been abstract legal discussions into compelling stories. The lesson for the rest of us: Go thou and do likewise. (Hat tip to Legal Writing Prof Blog.)