Thoughts on Legal Writing
For the last two weeks I've been working on several written projects involved in different stages of personal injury cases. I'm working on a Motion for New Trial, a Response to Motion to Dismiss, and an Amicus Curiae brief to the Court of Appeals of Maryland. Because this has occupied a big chunk of my time lately, I have a few thoughts on legal writing in general. Beware, these aren't presented in any organized form.
First remember that punctuation marks generally go inside the quotation marks. I am constantly messing this one up. Not because I don't know the rule, but through a combination of habit and poor proofreading skills. It doesn't help the every time I miss one of these, Ron Miller makes fun of me.
Don't use the phrases "the case at bar", "the instant case" or the like. It's "this case." This one comes to you straight from Justice Scalia's book, once again filtered through our friend "call me Ron" Miller.
One book you should have is the hated Bluebook. I think the concept of a several hundred page manual on citation is ludicrous, but it's really useful for citation forms you may not use every day. For example, I last used it to figure out the rule on the capitalization of court names. I don't know how much trial and appellate courts in Maryland care about this stuff as opposed to the content of the argument, but I am convinced getting it right makes you look better than getting it wrong.
The Motion for New Trial I am working on centers on the application of a few of the Maryland Rules. A fantastic resource on this topic is the book Maryland Rules Commentary, by Paul V. Neimayer and Linda M. Schuett. Both of the authors were heavily involved in the drafting of the Maryland Rules, so their commentary and practice tips carry great weight with the Maryland courts.
Courts value brevity. Trial and appellate courts are required to digest a staggering volume of paper. Oftentimes a compelling argument can be made concisely. There's no value in repetition, particularly if the court gets annoyed that you didn't think they understood your argument the first three times you made it.
An amicus brief isn't just a chance to regurgitate the arguments already made by the party whose viewpoint you favor. The value of an amicus brief is that you aren't limited to the facts of the case in the way the actual parties are. This is a great chance to tell the court all of the public policy reasons behind the position you advance, and to run out the parade of horribles that will happen if the opposite position is accepted. I like to use the amicus brief to show the court in real terms what possible effect its decision can have. This is also a good chance to try and limit a prospective decision to its own facts, if you can show that slightly different facts would mandate a much different result. I also like using these to show how the particular area of law has developed historically, especially where its a concept with long historical roots. I like the phrase "since 1854 (or whatever) it has been the law in this state that...." Then follow it up with something like "Appellants are asking this Court to depart from one hundred and fifty years of settled law and countenance a new exception which would result in (very bad things)."
I also am not a fan of the shotgun approach where every argument that can theoretically apply is made. I like to pick the best two or three arguments and put all my weight behind them.
