For a few years now, I’ve taught a spring class at UVA on something called “Federal Litigation Practice,” which I interpret to mean critical motions and appeals. (UVA offers other, much better, classes about trial practice.)
Every year, we start the class by going over “How to Write: A Memorandum from a Curmudgeon” by the incomparable Mark Herrmann.
Poke around the internet, and you can find plenty of other stuff that Herrmann has written, like at Above the Law or the Drug and Device Blog. It’s very good! And “How to Write” is itself just the first chapter of Herrmann’s brilliant book, The Curmudgeon’s Guide to Practicing Law. At my old firm, we gave The Curmudgeon’s Guide to every incoming lawyer. It’s very good!
But “How to Write” is just perfect. It’s 10 pages long. If you click the Amazon link to The Curmudgeon’s Guide in the previous paragraph, you can click “Look Inside” and read almost the entire essay. So Herrmann follows his own advice (“Finally, keep the brief as short as humanly possible.”) He’s also a solid stylist. If BriefCatch wrote a memo, this is how it would read.
And the essay itself is just crammed full of great advice. As it sit here trying to plagiarize it, I’m not even sure where to start. I steal the joke about block quotations almost every time I teach a CLE. So even though it’s great, plenty of readers have heard it before.
Instead, let’s go with Herrmann’s rules for describing a case. That’s what we teach in class. When you give Mark a memo, there is only one way to tell him about a case:
- Trial court’s holding (granting or denying a motion, or entering a judgment)
- Appellate court’s holding (affirming, reversing, vacating, or remanding)
- Whatever else you want to say
All which builds up to his rationale:
Why do I insist on a rigid formula for discussing cases? Because my clients like to win.
On Herrmann’s account, cases vary in their persuasive force. The most persuasive cases show the court doing what the Bad Guy is asking it to, then getting reversed. By discussing that case, you are implicitly telling the court that if you do what the Bad Guy asks, it too will get reversed. They hate that.
Second-best is the case where the court does what you’re asking and gets affirmed. At least you are keeping the court safe.
The least useful case is one where the court says something in dictum. If that’s the best we’ve got, so be it.
But as the Curmudgeon explains:
Your memorandum, however, must tell me the holding of the case first. If you do not tell me the holding in your memo, then I will not believe that you read and understood the holding. I will be forced to go to the library and read the case. I will not like this.