Tips for Writing to Generalist Judges

Like doctors, lawyers are increasingly specializing their practices as the law becomes more intricate and dense.  These former lawyer specialists are now sitting on the bench in general jurisdiction courts, routinely making decisions on matters outside their former specialized practice areas.   These judges regularly rely on the bar to inform them on the relevant law.  But, how are specialist lawyers to effectively write and advocate to such generalist judges?  What information and how much information should the specialist lawyer present?

Douglas E. Abrams, author and law Professor at the University of Missouri, wrote a timely article in Precedent for the Missouri Bar Association, reprinted by the Nebraska Lawyer.  Effective Written Advocacy Before Generalist Judges: Advice from Recent Decisions examines the effects of lawyer specialization on the bench consisting of “generalist judges.”   From the beginning of each case, each judge is limited in his or her knowledge of not only the facts, but also the law.  According to the U.S. Court of Appeals for the Seventh Circuit, “courts rely on lawyers to identify the pertinent facts and law.”   And, because trial and appellate courts decide more cases on the written brief than oral argument, such identification of the law and legal issues as well as persuasion depends on the lawyer’s written product.

Abrams presents two strategies for effective written advocacy revealed by recent reported trial and appellate decisions: (1) Orienting the Court and (2) Avoiding Jargon. 

On Orienting the Court:

“Dropping a judge in the middle of an alien landscape without a map and expecting him to get his bearings from fragments of testimony couched in occupational jargon to which he has not been previously exposed … is not conducive  to informed decisionmaking.”  Federal District Magistrate Judge, Langston v. Illinois Bell Telep. Co., No. 88 C3578, 1990 WL 129567 *6 (N.D. Ill. Sept. 3, 1990).

On Avoiding Jargon:

“[M]uch legal jargon can obscure rather than illuminate a particular case.”  Judge Richard A. Posner of the U.S. Court of Appeals for the Seventh Circuit, Miller v. Illinois Cent. R.R. Co., 474 F.3d 951, 955 (7th Cir. 2007). 

In a different case similarly involving complicated specialized jargon,  Judge Posner stated: “There is nothing wrong with a specialized vocabulary  – for use by specialists.  Federal district and circuit judges, however, … are generalists. … Lawyers should understand the judges’ limited knowledge of their specialized fields and choose their vocabulary accordingly. Every esoteric term used by the reinsurance industry  has a counterpart in ordinary English. … [Counsel] could have saved us some work and presented their positions more effectively  had they done the translations from reinsurance into everyday English themselves.”  Indiana Lumbermens Mutual Insurance Co. v. Reinsurance Results, Inc., 513 F.3d 652 (7th Cir. 2008).

In a nutshell, advocates convey no condescension when they write in  a respectful, professional tone using language “intelligible to everyday speakers of English.”