“You Write Like a Law Clerk.” Ouch.

August 3, 2023
Appellate Advocacy Blog

Types : Bylined Articles

I clerked for three years before entering private practice. It was easy to be a sponge and soak up the good tactics of the attorneys I observed, the procedures of the courts where I worked, and familiarity with new areas of law I never studied. I read hundreds of briefs, crafted technically and legally precise bench memos and draft opinions, and examined the issues from all sides to help my judges see the lay of the land and make the best decisions.

One skill I did not learn was how to write for a client. I learned some of that in law school, through drafting persuasive memos and briefs and some exam essays. It crept in a bit when my bench memos took a slight step toward intemperate near the end of my clerkships, and I realized I was itching to finally get out there and practice The Law myself. But writing with a grasp on a client’s real-world concerns and goals came much later.

As a new associate, I wrote a lot. Most of the early comments on my briefs went like this: “This is good, but you write like a law clerk.” Just as my feathers started to puff, I realized that was not a compliment.

“Writing like a law clerk” means you forgot you have a client. You are not maximizing the chances of your client winning if you are presenting both sides evenly. When someone says you write like a law clerk, they are telling you to reconsider these areas of your brief:

• The introduction: Introductions are tough. They are the most important section of your brief because they may be the only thing a busy judge or colleague will read. Introductions are also a summary of the brief, but no other rules apply. In the introduction, you must be both creative and direct. What’s the real reason your client should win on the issue at hand? What’s the real reason the parties are fighting about this issue? Highlight those.
• The facts: The legal standards section should be written persuasively, but it is not where you will convince a judge to rule for you. That’s the fact section. The law provides the outlines, but the facts fill in the story that underpins your case. They distinguish this case from others or provide parallels to cases with good outcomes you can highlight. The facts may tell the liability story or they may detail your efforts to avoid a discovery tiff and incorporate communications between counsel the judge has not seen yet. Plus, the facts help to orient the judge and law clerks who (unlike you) have not thought about your case for a few months. Tell your client’s story accurately and persuasively in the facts section, and you are putting your best foot toward victory.
• The money: If you ignore the damages, fees, or expenses of a case, you are thinking like a law clerk. Clerks (at least temporarily) accept a sub-private practice salary to bask in ivory towers for a year or two. Practicing attorneys run a business. The business needs money to function, and clients care about how much money they are paying. Money also drives both corporate and individual clients on both sides of the v. Follow the money. Is the other party’s motion to compel discovery a tactic following stalled settlement talks? Can you get the other side to stipulate to some facts so no one has to subpoena and depose a third party? These realities should be reflected in your writing. And when appropriate, and without disclosing any confidential settlement discussions, explain the reality of the case to the judge.

If you or a colleague think your work product sounds like a law clerk wrote it, take heart. Focusing on these areas of your writing can turn a balanced brief into a winning brief.