Persuasive Writing

Ability to write:

From Start to Finish

Legal Ease

From Start to Finish

By Howard Posner

My editor just called to inquire about this column. She didn't actually mention that I was stretching my deadline, but I reassured her nonetheless. "It's about beginnings and endings. I've written most of it," I said. "I just haven't gotten the beginning and the end yet."

It takes thought and effort to write an opening that accomplishes something. If you're writing for a judge, your very first words should inform and persuade, and assure the judge that it will be worthwhile to read what follows. Too often the introduction is precisely the place effort and thought are avoided. I'm looking at a memo of points and authorities that begins, "Pursuant to Code of Civil Procedure 430.10(e), defendant Commercial Krumhorn Company ('Commercial Krumhorn') hereby demurs to the first and third causes of action contained in plaintiff's unverified complaint."

Mind you, this hot news flash sits under a caption proclaiming "Memorandum of Points and Authorities in Support of Defendant's Demurrer to the First and Third Causes of Action in Plaintiff's Unverified Complaint." The memo comes after a "Notice of Hearing on Demurrer to the First and Third Causes of Action in Plaintiff's Unverified Complaint," the text of which says that defendant is demurring to the first and third causes of action. The Notice is followed by "Defendant's Demurrer to the First and Third Causes of Action in Plaintiff's Unverified Complaint," which says that the defendant demurs to the first and third causes of action because they fail to allege facts sufficient to state a cause of action. The demurer also has a footer announcing, "Defendant's Demurrer to the First and Third Causes of Action."

Having begun by repeating what he'd already said six times, Commercial Krumhorn's attorney continued with a few pages of largely irrelevant facts and then a section explaining in general terms not related to the case (probably taken verbatim from another demurrer he had on his hard drive) what a demurrer is and what standards a court should apply in ruling on one, just in case the judge had Alzheimer's disease or a lot of spare time. After three or four pages of such throat clearing, he finally got around to the issues.

This sort of opening is, alas, pretty standard fare. The plaintiff began her Opposition to Demurrer with a similarly unenlightening "Plaintiff submits the following points and authorities in opposition to the Demurrer to the First and Third Causes of Action," thus relieving the court's worries about whether she had put the correct caption and footer on the pleading.

A judge looking at a morning calendar with 15 motions on it does not want to waste time reading an opening that says only what any reasonably intelligent radish would already know. The judge wants to know two things immediately: What do you want, and why should you get it?

So tell the judge precisely that, as quickly as possible. A demurrer might begin with a capsule description of the complaint's defects. Imagine that someone in your office has asked whether there's a real chance of getting the case knocked out on demurrer, and why. If your answer is yes, the "because" part of your answer should make a good first draft of your opening, which might be something like "Plaintiff is suing for a real estate sales commission but does not allege that the defendant signed the commission agreement. The statute of frauds therefore bars recovery." Compressing the argument into a short thesis at the beginning assists the reader's comprehension. If the judge learns on page one that it's important whether the right person signed the contract, she won't gloss over the details of who signed what.

The demurrer opposition could begin with the flaw in the demurrer's logic or a quick explanation of how each element of the cause of action is properly alleged. A summary judgment opposition might describe the triable issue of fact in the first sentence. A motion for sanctions could begin with a thumbnail description of the other party's misconduct. If your point is clear enough, you might win the motion in the first paragraph. Even if you don't, you earn the reader's good will by making his task easy, as Justice Armstrong does in the first two sentences of Wang v. Hartunian (111 Cal. App. 4th 744 (2003)): "Plaintiff Paul Wang appeals the dismissal of his action against defendant Steven Hartunian following the grant of the defendant's SLAPP motion. Because we conclude that a citizen's arrest is not protected activity under the anti-SLAPP statute, we reverse."

The first 38 words say pretty much everything a first-time reader (or, indeed, we members of Wang's crack appellate team) would need to know about the case. Other justices, of the Agatha Christie school of opinion writing, might have started with the first sentence but saved the crucial second one for the end.

The case-in-a-nutshell introduction is, in a sense, a conclusion: You begin with where you want to go. A good conclusion might well have the same elements as a good introduction. Then again, it might not. Sometimes recapitulating the whole argument is the best approach, and sometimes it's best to simply leave readers with a thought-or a characterization of your position or your opponent's-that will stick in the memory.

I've stopped using the headings Introduction and Conclusion because I'm convinced that to many judges they just mean Nothing Interesting Here. If I can't boil down my introductory statement to a useful argumentative heading, I'll put it on the page without one.

I suspect that judges, like me, have seen one too many Conclusions that say something like "For the foregoing reasons, plaintiff requests that his motion be granted." I can't imagine what the writer hopes to accomplish with this, unless he is so unsure of his presentation that he fears the judge couldn't otherwise tell whether he really wants the motion granted. Sometimes such fears are well grounded, of course, but a mumbling conclusion won't salvage a bad argument any more than it will help a good one.

If you have a parting thought that you think will be persuasive or memorable, put it in. If you think your argument needs summing up, do it. If you can't (or don't want to) do any of that, don't resort to the "for the foregoing reasons" incantation. It's worse than nothing. If you've made your point, there's nothing wrong with saying what you have to say and signing off, like this.

Howard Posner practices appellate law in Los Angeles, consults with other lawyers about writing, and writes about nonlegal issues.