April 8, 2014, Utah State Bar CLE

Hon. Stephen L. Roth, Utah Court of Appeals

Hon. Clark Waddoups, U.S. District of Utah
 Try to see your case as the judge will:
A struggle between two perspectives on the law and facts
that he or she doesnt have a stake inother than to
make the best decision possible under neutral
principles.
Sympathetic detachment:
The judge will strive to see the case from each partys
perspective, in order to understand their view of the law
and facts as affected by their needs and desires in the
circumstances. Consider their circumstances with
sympathy, but without sacrificing impartiality.
 Sympathetic detachment is a powerful tool--not just for
judges--but for lawyers, too:
Most cases have some merit on both sides . . . . Most issues
about which serious argument takes place cannot be reduced
to a simple dichotomy of right and wrong.
Take a measured, responsible approach in arguing against an
opponent. Evaluate the other sides argument by attempting
first to understand it. That advice sounds elementary, but
lawyers frequently argue without truly understanding what
their opponents are saying. Before rebutting the opposing
arguments, try to state them as if you were the proponent.
When you can do that, you can begin dismantling those
arguments.
-Bryan A. Garner, The Elements of Legal Style 197 (2d ed. 2002)
 Trial Courts
Broad Range of Subjects (criminal 40%, civil 60%)
Motion after motion (along with trials, hearings, etc.)
From simple defaults to complex summary judgments
Often heard back-to-back
Hundreds of pages per month
All while trying cases and hearing evidence
Appellate Courts
In an average month a [court of appeals] judge reads
close to a thousand pages of briefing.
Probably more--and true for the Supreme Court, as well.
 The position of a judge has been likened to that of
an oysteranchored in one place, unable to take
the initiative, unable to go out after things,
restricted to working on and digesting what the . . .
eddies and currents of litigation may wash his
way.
-Magruder, Mr. Justice Brandeis, 55 Harv. L. Rev. 193, 194 (1941 )
The secret ambition of every brief should be to spare the
judge the necessity of engaging in any work, mental or
physical.
Mortimer Levitan, Confidential Chat on the Craft of Briefing,
1957 Wis. L. Rev. 59, 63
Write for a human being. Imagine the person. Talk with the
person.
***
Imagine a judge sitting uneasily in a chair, with a thousand
papers scattered nearby, all crying out for the judges
attention. Imagine that the judge is looking for an excuse to
put your brief down and do something else. Your job is to get
the judge to sit back and readintently.

Theres something enormously appealing about a straight-

talking advocate who writes as if speaking to the court.
-Bryan A. Garner, The Winning Brief 426 (2d ed.
2004)
 The desire for simplification is a perennial weakness
of the human mind, even the mind of judges.
-Sir Wilfrid Greene, The Judicial Office 12 (1938)

Simple arguments are winning arguments; convoluted

arguments are sleeping pills on paper.
-Alex Kozinski (9th Circuit Ct. App.), How You Too . . . Can Lose Your Appeal, 23
Montana Law R. 5, 6 (Oct. 1977)
 A Garner example:
Under Utah Law, to recover for fraud a plaintiff must
prove detrimental reliance on a deliberate
misrepresentation. In a meeting with Perkins, Dedman
allegedly misrepresented the price of his goods, saying
that they were competitively priced when they were not.
Perkins sued for fraud. But in his deposition, Perkins
testified that he had made no decision based on
anything said at that meeting. [Perkins cannot recover
against Dedman for fraud.] [70 words]
 The basic requirements:

Hold the length to 75 words or less

Use several sentences (not just a single question)

Include case-specific facts

Make sure the statement or question at the end flows directly

from what precedes it

Each is important
 The logical structure of the Summary Issue is a
Syllogism:
An argument, the conclusion of which is supported by
two premises.
-Dictionary.com (syllogism)

The major premise: A statement of the law

The minor premise: A statement of fact from the case
The conclusion: Inherent in the question at the end
Example 2 (criminal mischief case, post-trial):
This motion for judgment notwithstanding the jurys verdict
presents the court with a single issue:
A gang enhancement requires that the defendant be aided
or encouraged in a crime by at least two others. The only
evidence of a second accomplice was a person 1) standing by
defendants car while the codefendants sprayed graffiti 2)
who fled when police arrived. But mere presence does not
make one an accomplice to crime, nor does flight alone prove
criminal involvement. [Two such circumstances cannot
support the enhancement beyond a reasonable doubt.] [75
words]
 Example 3 (Mechanics lien case on appeal):
1. Johnsons appeal can be disposed of by deciding a single
issue:
Under Utah law, if the plaintiff accepts full payment on the
judgment, the controversy has become moot and the right to
appeal is waived. After the trial, Smith paid the full amount
of the courts judgment to Johnson, and Johnson deposited
the payment in his account. Did Johnson thereby waive his
right to appeal the courts denial of his claim for attorney
fees? [63 words]
 Example 3 (contd):
2. If the court answers that question in the affirmative, it
need go no further. However, if the court decides the answer
is no, the court will have to deal with one more issue:

A mechanics lien can be filed for any unpaid work that

improves the premises in any manner. Cases have
interpreted improvement as a physical annexation to the
land or realty that has some degree of permanence,
something that amounts to more than ordinary maintenance
or cleanup. Johnsons flood remediation in Smiths building
was limited to removing water and drying, scrubbing, and
mold prevention. Should Johnson be able to recover attorney
fees under the mechanics lien statute? [75 words]
 Good lawyering should identify that issue.
Good writing effectively presents it to the judge.
A strong winning argument loses credibility if the
judge must tease it out from numerous weak
arguments.
 Motions In Limine
Motions re Exhibits
The opener, of course, wont carry the day on its own.
Its a promise about what follows. In the middle, you
must state the facts, elaborate the legal premises, show
how the facts tie into those premises, and then explain
why the suggested conclusion is the proper one. All this
becomes easierboth for you and for your readers
once youve framed the issues on page one.
Bryan A. Garner, The Elements of Legal Style 187 (2d ed.
2002)
 Introduction: Basis for Granting Motion
Background Section: Explain Context and Tell Story
Requires: First State Each Legal Element Necessary to
Prevail
Facts: State Under Each Element the Undisputed
Facts to Prove ElementSupported with Evidence
Argument: Persuasive writing as to why Client should
prevail
 Introduction: Basis for Denying Motion
Background: Non-moving Partys Story
Requires: Agree or Disagree on Legal Elements
Facts: Under Each Element State Facts that Are in
Dispute--Supported with Evidence
Argument: Persuasive Writing as to Why Case Should
Go to Trial
 All Supporting Evidence Must be Included In A
Separate Indexed Appendix.
Make it Easy for the Judge to Find Your Supporting
Evidence.
Identify Where Exhibits Came From.
Provide Enough of the Deposition Transcript for the
Judge to See the Context.
 Fed. R. Civ. P. 56(c)

(1)(B) . . . materials cited do not establish the absence

or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the
fact.

(2) . . . A party may object that the materials cited . . .

cannot be presented in a form that would be admissible
in evidence.
 Fed. R. Civ. P. 56(c)(4)An affidavit or declaration
used to support or oppose a motion must be made on
Personal knowledge
Set out facts
Show that [the person] is competent to testify on the
matters stated.
 An Example:
1. I am the Plaintiff.
2. Attached are pictures taken by Mr. Engels. They fairly
depict the conditions.
3. My employer was Smith Tools. The entity which sold the
tanks was a different entity.
4. The excessive snow and ice that caused my injury was
caused by excessive use of the tanks by GemOxygen.
5. The changes described [in the opposition] are not
correct. The line was connected before the accident.
 Example:
1. I am one of the named Defendants.
2. I previously owned the Defendant mortgage company.
3. Upon information and belief, Defendant Andrew
Johnson was included only to harass and annoy.
4. Because of the good service I provided, Ms. Alexander
referred the Plaintiff to me.
5. I decided to step in and help Plaintiff by becoming her
Private lender. Nonetheless, I did my due diligence to
ensure that I could protect my home, wife and four
children.
6. On a private loan, three percent per month is actually
fairly normal.
 Write with nouns and verbs.
Intensifiersi.e.clearly absolutely without
doubt evidence weakness in your argument.
Use the active voice.
Conclusory Statements do not persuade.
Write the facts and argument in such a way that the
judge has been persuaded Without Hitting Him Over
the Head With the Conclusion.
Avoid arguments of command: You MUST grant my
motion.
 Plaintiff was told not to worry about the Notice of
Foreclosure.

Plaintiff was forced to listen to crude and harassing

jokes.

The Defendants misrepresented the material terms

to induce my client to sign the contract.
 The Best Lawyers Are Good Story Tellers.
Avoid legal jargon and titles: Using Plaintiff, Defendant,
Cross Claim Plaintiff, Counter Claimant, Cross Claim
Defendant All Make It Harder to Follow What Happened
Avoid Uncommon AcronymsNorthrup Grumman
Systems Corp. (NGSC)---exception for names like IBM.
Use Short Titles that You Can Pronounce and that the
Court Understand Without Having to Interrupt the Train
of Thought
Use Sentences of Varied LengthSome Shorter, Some
Longer
Use Road Signs: Transition Words, Headings, Subtitles,
Paragraphs
 The Most Emotionally Appealing Case Must Still State
a Cause of Action

Verify that You Can Answer Every Legal Element

Not Unusual For the Court to Decide on an Issue the

Parties Have Failed to Address
 The Opposing Party Will Not Forget About Them

Do Not Miss the Opportunity to Present the Facts

First in the Best Light You Can

You Lose Credibility by Ignoring Relevant Facts and

Law.
 State the Argument Clearly the First Time.

The First Time You Repeat the Same Argument,

the Judge Will Skim it.

The Second Time the Judge Will Be Annoyed and

Will Skip It.

The Argument Loses Credibility the More You

Repeat It.
Reply memoranda . . . must be limited to rebuttal of
matters raised in the memorandum opposing the
motion. DUCivR 7-1(b)(2)(B)

It Is Not Helpful to the Court When the Parties

Arguments Pass Like Ships in the Night
 The reply lets you have the last word on your
opponents best arguments.

So, dont waste this premium space rehashing

arguments from your opening memorandum.

Instead, focus on telling the judge why the strongest

points in your opponents response arent as strong as
they looked.
 Serious disadvantages to the overlong reply:
Do Not Bury Best Points in a Regurgitation
Judge Wants Your Rebuttal
Judge Will Skip a Repetition of Opening Arguments
You Will Lose Judges attention at this critical point with
a long, unfocused reply.
 Avoid This Briefing Result:
At the final stage of revision, read your prose aloud for
content and style. Youll be surprised how often you spot
subtle problems in the reasoning, or the deficiencies in
the analysis, by reading aloud. By relying on your ear for
guidancenot just your minds earyou will also find
more ways to improve your phrasing. If you cannot read
a sentence or paragraph aloud and have it make sense to
a listener, then the writing is inadequate. Work it over
again.
-Bryan A. Garner, The Elements of Legal Style 219 (2d ed.
2002)
Word for word, lawyers are the most highly paid
professional writers in the world. But the literary
tradition in the profession is probably the
worst. Hyphenating well, punctuating correctly, is not
below your pay grade.

Bryan Garner
to include arguments that cross the line.

It is a HUGE mistake!

Dont get caught in the trap.

 My opponents position is contrived.
The contention is ridiculous
Opposing counsel is walking close to the ethical line.
Deliberate distortion of facts
Misrepresented holding of case
Motivated by vindictiveness
We granted certiorari in these two related cases to review the
issue of whether the beneficiary of a trust has authority to
impose binding covenants, conditions, and restrictions on real
property held in trust. We decline to reach this issue, however,
because petitioners briefs in each case are replete with
unfounded accusations impugning the integrity of the court of
appeals panel that heard the cases below.
....
Accordingly, we strike petitioners briefs as containing
irrelevant and scandalous matters in violation of Rule 24(k) of
the Utah Rules of Appellate Procedure, affirm the result
reached by the court of appeals in each case, and assess
attorney fees against petitioners counsel.