Anyone who’s practiced before judges knows that they can be a mixed lot. Each judge has a personality and preferences. What works in one courtroom often does not work in the other.
But does that variance exist in judges’ views on legal writing? Should you change your style or approach for every judge you write for, as you might in a courtroom presentation?
To get an answer, I spoke with Ross Guberman of Legal Writing Pro. Ross is not convinced that lawyers need to change their writing for each judge, but they definitely need to change their writing.Ross is not convinced that lawyers need to change their writing for each judge, but they definitely need to change their writing. Click To Tweet
The Consistent Proclivities of Judges
Ross has taught both lawyers and judges about quality legal writing in hundreds of seminars. When this question of adapting to judicial preferences comes up, Ross gives this answer:
Of course judges do have different predilections and pet peeves, but almost all judges in America – at least the ones who actually read briefs and care – they actually agree on all the important aspects of writing.
To validate his take on this issue, Ross surveyed more than 1,000 judges in both state and federal posts, both appellate and trial. His broad-sweeping survey found very consistent preferences. Having found that consistency, Ross advises that you don’t adapt your writing to your particular judge.
Given that time and energy are limited, and that it’s actually very difficult to figure out what any one judge wants in any one day, almost all lawyers would be better off focusing on core skills that will please the crowd. Maybe don’t spend so much time on idiosyncrasies.
Ross’ conclusion is based on empirical data, so it’s probably wise that we listen. His survey on judges’ consistent preferences is very helpful so let’s dig into it.
Specific Judicial Preferences
Here are a few highlights from Ross’ survey of judges that you can incorporate into your writing:
- Simplify. Avoid using party labels and obvious designations in parentheticals. As one judge put it, “Avoid terms (‘terms’) altogether.”
- Don’t clear your throat. Long introductions (“Here comes Plaintiff by and through counsel…”), hyperbolic assertions (“it is clear that,” etc.), and “grammatical expletives” (like “there is” and “it is”) are a waste of space.
- Design the reader’s experience. Judges are tired of long blocks of text. Instead, use timelines, graphs, and white space.
- Cite the right cases, not every case. It’s hard to leave research on the cutting room floor, but here’s one judge’s take: “Cite just enough cases and not all cases. One controlling case is enough. For non-controlling cases, if there aren’t any contrary or many contrary cases, cite two or three non-controlling cases, preferably the two or three most recent. If there are two contrary groups of cases and none is controlling, then it might be appropriate to cite one from each jurisdiction supporting the writer’s side.” (By the way, SmartCite from Casetext helps with this, so be sure to check it out here.)
I recommend reading Ross’ helpful article about his survey of judges. Again, you can get it here. Although some choices should defer to your particular style and voice, you’ll gain a lot of insight about clear writing from sitting judges.
Better to Start Writing Better
Here’s the clear message from Ross: adapting to judges will yield far smaller returns than improving your writing skill. He added a final bit of context to this assertion.
I might exclude the kind of people who are before the U.S. Supreme Court five times a year. Maybe they really do need to study various justices’ wording preferences and the like. But for the other 99.99% percent of us, just focusing on the big picture is probably the best use of limited time.
What kind of changes can you make to improve your overall writing? Start by reviewing the many interviews in the Casetext Insights series on writing. Look also to Ross’ workshops, courses, and tools. As you improve your writing craft, you’ll find judges more open to your legal arguments.
Want to Learn More about Writing Well?
To see the entire interview with Ross, check out the video below…
And take a look at the other articles in this series on better writing for lawyers. We’re happy to support the development of good writing habits and would love a chance to explain how you can incorporate Casetext’s AI-enabled research tools to enhance your skills.