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Three Tips for Trial Filings

Trial filings are the Ugly Ducklings of written advocacy. Rarely do judges say, “Ross, I just read the most incredible motion in limine” or “Wow, you’ve got to see this memorandum in support of partial summary judgment that I just devoured.”

Let’s face it, although most litigators hang around the trial courts, most of the name-brand brief writers are known for their appellate work.

That said, if you dig deep enough, you can find terrific writing in even the most mundane cases and filings.

I share three techniques below.

Add headings to your fact section and put them in the present tense.

Between the never-ending record cites and the long blobs of uninterrupted text, many fact sections are a turn off. One underused trick is to pepper your fact section with the same sort of meaningful headings that you would use in your argument section. By doing so, you can both break up the monotony and, as long as you keep the tone neutral, add some persuasive effect.

Also consider putting your headings in the present tense to help them come alive.

Here’s an excellent set of headings in an opening brief for Lucent before the District Court of Delaware. The bankruptcy-related brief was signed by former Solicitor General Seth Waxman, lawyers at Cravath, and others:

A. The Parties Begin A Strategic Relationship Intended For Mutual Benefit
B. The Parties Execute The “Subcontract” And Thereafter Engage In “Pass-Through” Transactions To Finance The Build-Out Of Winstar’s Network
C. Winstar Assists Lucent In Meeting Revenue Targets; Lucent Provides Winstar Reciprocal Benefits
D. At The Height Of The Telecom Boom, Winstar Obtains More Favorable Financing Terms
E. The Lucent And Winstar Relationship Further Deteriorates

Use bullet points to contrast your opponent’s claims with your own.

Particularly in opposition or reply briefs, this technique is one of the best antidotes to long, repetitive paragraphs stuffed with “My opponent’s contention is erroneous” or “Contrary to my opponent’s contention” and other filler.

Representing Bank of America in Bank of America v. Cleveland, former Acting Solicitor Walter Dellinger exploits this technique effectively here:

A comparison of the allegations in Deutsche Bank to Bank of America’s allegations here conclusively establishes that Bank of America’s real estate lending-related activities are the real target of the City’s claims against BAC:
  • The City alleges that the use of improper underwriting standards permitted BAC to “originate[] loans that made no economic sense.” As the Complaint here makes plain, BAC does not originate loans; instead, Bank of America (inclusive of its operating subsidiaries) is the BAC-affiliated entity that does so.
  • The City alleges BAC violated state nuisance law by offering “Hybrid Adjustable Rate Mortgages”; offering “Low- and No-Documentation Loans”; and offering “Interest-Only Loans.” Yet BAC does not establish terms of credit for real estate loans; Bank of America is the BAC subsidiary that carries out such activity . . . .

Put your case parentheticals in parallel form.

A top complaint of judges is that lawyers include too many irrelevant details about the cases they cite. A parenthetical can be a great disciplinary device -- but some of them are rambling in their own right. Here, for example, in a sentencing memorandum for Bernie Madoff, federal prosecutors start to lose their form and create common-law mush:

The legislative history of the Bail Reform Act of 1984 makes clear that Congress intended that the “safety of the community” language in Section 3142 was expected to be given a broad construction. . . . Courts have, therefore, appropriately construed the statute to find that the protection of the community from economic harm is a valid objective of bail conditions. See United States v. Schenberger, 498 F. Supp. 2d 738, 742 (D.N.J. 2007) (holding that “[a] danger to the community does not only include physical harm or violent behavior” and citing the Senate Committee Report language reproduced above) . . . . United States v. Gentry, 455 F. Supp. 2d 1018, 1032 (D. Ariz. 2006) (in a fraud and money laundering case, in determining whether pretrial detention was appropriate, the court held that danger to the community under Section 3142(g) “may be assessed in terms other than the use of force or violence . . . including economic danger to the community”); see also United States v. Reynolds, 956 F.2d 192, 193 (9th Cir. 1992) (post-conviction for mail fraud and witness tampering, the Court held that “danger may, at least in some cases, encompass pecuniary or economic harm.”); United States v. Provenzano, 605 F.2d 85, 95 (3rd Cir. 1979) (in a pre-1984 Bail Reform Act case, post-conviction, the Court rejected an application for bail finding that “danger in the community” is not limited to harms involving violence).

Don’t mess with convention here. Follow the lead of patent-litigation guru Morgan Chu. In his motion below from eBay v. IDT, for example, notice how he (1) starts with a participle explaining what the court did, (2) adds the word “because” or the idea of “because,” and (3) explains why the court did what it did in a way that sounds like his own case:

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).

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