Converting Benchslaps to Backslaps
44 Pages Posted: 11 May 2016
Date Written: May 10, 2016
A search in published and unpublished court decisions for derivations of phrases like "poorly written brief" or "failure to follow court rules" yields an alarming multitude of case opinions in which judges admonish lawyers of all levels of experience for shoddy briefs or for flouting non-negotiable substantive and procedural rules. Legal bloggers have affectionately dubbed these public reprimands "benchslaps."
Section I of this article provides a contextual background that professors and practitioners can share with rookie legal writers, using judicial opinions to demonstrate the eight most-common ways that attorney work product falls short of judges' expectations and, more importantly, how those deficiencies detrimentally affect the legal process and client advocacy. On a positive note, this section also provides examples of judges' appreciation for good legal writing that facilitates the court's understanding and evaluation of a case. Section II briefly considers several philosophical reasons why individuals ignore or flout rules in general, even intelligent, accomplished individuals like ambitious law students and seasoned legal practitioners. This section is designed to provide law professors and supervising attorneys with context as to why new practitioners might behave a certain way, so that we can inspire change. Section III suggests practical ways for professors and practitioners to communicate and reinforce to law students and new attorneys why substantive-structural and procedural-formatting rules of legal writing are important. With the goal of inspiring and cultivating better-written work product across the profession, this article concludes with proposals for broad-scale legal communities (such as civil-procedure rule-makers and state bar associations) and small-scale legal communities (like law offices) to motivate new lawyers to invest more care into the written word. These considerations include whether (a) civil procedural rules should include more-express language concerning the quality of legal writing in court submissions and clarify the ramifications of not following substantive mandates and procedural rules; (b) the oaths that new attorneys take in the fifty state bars across the country should incorporate a commitment to quality legal writing and rule compliance as an overt covenant of professionalism; and (c) state bar Continuing Legal Education (CLE) requirements should be modified to integrate an annual legal writing component, just as many states impose an annual ethics or professionalism requirement.
Keywords: legal writing, brief writing, court rules, civil procedure, benchslap
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