Writing for the Judge

As a young lawyer I sometimes felt aggrieved when a judge would, without credit, pick up the language of my pleadings and include it in the written judgment or endorsement. “Wait a minute!,” I would think to myself, “Those are my words! At least the judge should acknowledge the source!”

But as I learned a thing or two I came to realize that I was receiving the highest compliment and that the more I could get the judge to adopt my language, the more I won. In fact, I came to understand that the loftiest goal of legal drafting is to ghost-write the court’s judgment.

This is not the least bit cynical– it’s actually a narrow version of Stephen Covey’s second rule: “Start with the end in mind.” Since the true art of advocacy is to win both the heart and the mind of the court, the skilful* advocate should want to put words in the judge’s mouth.

If you start by writing out the desired judgment then work backwards, you are forced to understand the strengths and weaknesses of your position. When you have done that, draw a straight line from your facts and law to the desired outcome, then write and re-write your pleadings and arguments to increase the likelihood that you will hear the judge say what you want to hear.

But not every reader is a lawyer. Nevertheless most of us write to influence decision makers. Perhaps you are writing to a managing partner proposing a better group plan, or maybe you are writing to the chair of a municipal committee offering your engineering services– in any such case you are writing to influence a decision maker who, even if personally persuaded by your pitch, still has to set out the reasons for their decision. Perhaps they have to go on to sell your proposal to the partnership or city council, or justify their decision to a board of directors, or perhaps they simply need to record their reasoning “for the record”. Wouldn’t it be wonderful to have your words in their mouth?

If this is something which resonates with you, but you are struggling with the process, drop me a note.