From Start to Finish
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
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
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
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