Confession time: I have a strong prejudice against the default writing style at most BigLaw firms. I’d like to think that my intolerance is mostly justified, but I recognize that it’s at least partly unfair.

To understand why, remember that I started my career at a BigLaw firm. I had a great experience working with talented lawyers on exciting cases. But I faced one major hiccup along the way. Early in my tenure, I was assigned to a project with some corporate-governance types. We had to analyze a potential securities-fraud issue for some client or another. The project was staffed in typical BigLaw style: partner, senior counsel, counsel, senior associate, and me.

As the babiest of the baby lawyers, I won the honor of taking the first cut at the memo summarizing our analysis of the issue. This meant that I had come up with our analysis of the issue. Never mind that I didn’t know the first thing about securities fraud.

In my memory, at least, this was a heavy lift, which resulted in hefty, detailed memo–maybe 35 pages, single spaced. I did a ton of research and worked through the weekend to finish it early. The senior associate helped out. She loved the draft. We passed it along to the counsel. Let’s call him “Sid.” (I’ve changed names and, in some cases, genders to protect the innocent.)

Sid hated my memo. He wouldn’t even redline it; he said that it was hopeless and told me to start over.

So I did. I pulled an all nighter and delivered a new document at about 6 a.m. the next morning. I worked insanely hard on that thing.

If Sid hated version 1, he absolutely loathed version 2. He called me into his office and  told me that he had real concerns about my writing. It wasn’t just subpar for a first-year associate; it was totally, hopelessly unacceptable at a Firm of Our Stature. Sid suggested that I pursue remedial writing instruction. In the meantime, he was going to give me one more chance. If I couldn’t deliver a minimally acceptable product by the morning, he would get a more capable lawyer involved.

This time, at least, Sid did me the courtesy of marking up my introduction. As I recall, my sentences were too short; I did not use enough romanettes; and I deployed too many verbs.

Also, through three rounds of “edits,” I had yet to receive a substantive suggestion about the analysis. That’s possibly because nobody on the bottom rungs of the case team knew anything about securities fraud, either.

Another revision. Another all nighter. Another 6 a.m. delivery. I took Sid’s comments to heart. I wrote sentences that went on for paragraphs, and paragraphs that went on for days.

Yet version 3 was, somehow, even worse. Sid pulled in a senior associate, the senior associate wrote some argle-barle that had almost nothing to do with the facts of the case–he cut-and-pasted whole sections from a law-review note–and I was cast off to remedial legal-writing land.* The memo wound up costing more than most people make in a year. It was trash. The relationship partner never sent it to the client. Sid still has the same role at the same firm, lo these many years later. And I’m doing blog posts about legal writing.

So that’s where I’m coming from.

Now, you may have noticed that some BigLaw work product recently made the news. The DC District Court slammed some fancy BigLaw lawyers representing Concord Management and Consulting for writing ludicrously over-the-top briefs. In a public hearing, District Judge Dabney Friedrich reportedly said “I found your filings, in particular your reply brief filed Friday, unprofessional, inappropriate and ineffective.” News reports noted that the suspect briefs quoted Looney Toons and a profane (if slightly sanitized) quip from Animal House. Judge Friederich “made it clear that she was not amused by what she called the ‘clever quotes.’ She also chastised” counsel for “ad hominem” attacks on opposing counsel. She said that the quotations were “undermining [counsel’s] credibility in this courthouse. I’ll say it plain and simple: Knock it off.”

Now, to be clear, this wasn’t my BigLaw firm. But it was a BigLaw firm, so my schadenfraude kicked in. And so did my curiosity; I couldn’t believe that some of the quotations from the briefs were accurate.

But they are. They’re real, and they’re spectacular.

I pulled two of the briefs from PACER. I read them. And I have thoughts!

First, people have different philosophies about writing briefs. My goal in writing a brief is to advance my client’s cause by providing helpful information to the court (and its clerks) in a useful package. Secondary to that, I want to build credibility with the court and opposing counsel.

Second, if I write a brief that makes me feel smart or funny, or that says mean things about the other side, I am almost guaranteed to alienate my readers. That’s counterproductive, as it undermines these goals.

Third, the only people in the world who can make legal writing funny are

  • Elena Kagan
  • Mark Hermann
  • Elie Mystal
  • Don Willett
  • The Guy from Popehat
  • Drew Magary (probably?)

That’s it. When I feel like writing something clever, I check to see if I am one of these people. Usually I’m not.

Fourth, if all else fails, at the very least I want to minimize unnecessary and work (and suffering) for my reader.

So with that in mind, let’s have some fun with some snippets:

This intro rocks. I was wondering if we were going to call the Defendant “Defendant” or not. Sometimes I like to call the defendant “Gertrude,” just to mix things up.

Also, when you have a catchy title like “DEFENDANT CONCORD MANAGEMENT AND CONSULTING LLC’S REPLY IN SUPPORT OF ITS MOTION TO COMPEL DISCOVERY FROM THE UNITED STATES,” it’s best to repeat that title in the first sentence of your brief. Verbatim, if possible. That grabs the reader’s attention. They love to read extra words that don’t convey additional information.

If you’re going to use an expletive from Animal House, own it and type out the work “fuck.” Also, why are we using an expletive from Animal House? The quotation isn’t an argument. It doesn’t add to the argument. It’s not inherently funny, and it feels forced because it doesn’t neatly fit the facts presented in the memo. You could save the reader some time by just writing “Special Counsel, BOO!”

Or use the GIF of Belushi with the mashed potatoes.

Does this sentence even have a subject? I got tired and had to stop reading. I do appreciate the double-indent on the first line, though. That communicates authority.

So, “the Court” is actually the person that we’re addressing. If I were the Court, I might find this sentence . . . whiny? Accusatory? That’s not how we make friends.

And on to the next brief:

Another whiz-bang introduction. Like Hamlet, Moby Dick, and 67% of the Great Works in the Western Canon, Concord opens with the phrase “pursuant to.” This reels the reader in.

Also, “To summarize: WRONG ANSWER.” is an arrogant and off-putting way to summarize your position. We’re trying to help the Court get to the right answer. Picking on opposing counsel doesn’t move that ball forward.

Intergalactic, planetary, planetary, whiplash fashion . . .

So, here’s the thing about jokes: If you have to explain them, they’re not jokes. You can make the Tweety Bird reference. Everyone over 35 will get it (which maybe excludes clerks, which maybe suggests that it’s not the awesomest pop-culture reference to drop into a brief. But I digress.)

But if you have to drop a footnote explaining  Tweety’s catchphrase, your reference stops being funny. You haven’t fully Gorsuched it, I guess, but it’s still mostly dead. (See what I did there? With the reference?)

This is . . . a conclusion? It wouldn’t hurt to restate the relief sought. I think the second sentence is supposed to explain why that relief is appropriate. Yet there are many words and ideas in that sentence. Some of them might grow up and get their own sentence some day. Just a thought.


*We quickly diagnosed the main problem with my writing, which was Sid.