Guberman on Writing Motions

Over at The Volokh Conspiracy, guest blogger Ross Guberman has been authoring some very interesting posts about legal writing.  Guberman’s earlier posts highlighted his picks for the top writers on the Supreme Court, with Roberts as his pick for the conservatives and Kagan as his pick for the liberals.

I found Guberman’s post from today to be especially helpful.  Guberman describes several steps that attorneys can follow to make their trial filings more readable, compelling, and memorable.  While Guberman’s focus in this post is on filings before trial courts, the lessons here for the most part seem applicable to appellate brief writing – and those pieces of advice that conflict with appellate formatting are at least based on writing themes that apply to all levels of legal advocacy. 

I found the last point on parentheticals to be the most helpful piece of advice.  Guberman notes the importance of maintaining a consistent approach to your parentheticals and offers the following good example from a brief by Morgan Chu:

Defendants should not be heard to complain that they did not have Alpha Holdings’ documents prior to Mr. Gordon’s deposition when Defendants did not even subpoena Alpha Holdings for documents until after Mr. Gordon’s deposition. See E.E.O.C. v. Honda of America Mfg., Inc., 2008 WL 440437 at *6–7 (S.D. Ohio February 13, 2008) (refusing to permit the re-deposition of a witness because the deposing party failed to pursue obvious avenues for discovering documents before taking the deposition).

All too often I find myself inserting the redundant term “holding” or oversummarizing the cited case.  Adopting a uniform strategy, especially one modeled on this example, helps avoid these problems.  This is especially helpful when space constraints require one to choose parenthetical citations over drawn-out analogies.