Trial Magazine

Legal writing wins arguments. Yet while many judges will not appreciate inflammatory or flowery language riddled with adjectives and adverbs, clients need to know that you are zealously fighting for them by telling their stories as persuasively as possible. By striking the right balance, you can reassure your clients while retaining credibility before the court.

Generally, avoid hyperbolic language. Courts do not want to wade through superfluous language to decipher your client’s position and the supporting legal authority. And be aware of inflammatory language: You can get your position across without calling opposing counsel “highly ill-informed” or “dead wrong.” Using such language may cause you to lose ­credibility before the court—and once lost, it is difficult to gain back. Don’t be the attorney remembered for submitting a rambling or over-the-top brief; rely on the facts and the law to make your argument, not adjectives.

Emphasize that cases are won on application of the law to the facts, not overly aggressive posturing in legal documents.

Help your client understand why certain strong language is better left out of court documents. Clients are more likely to trust your decisions if you take the time to explain why you made them. If your client, after reviewing a complaint or brief, questions why the tone is not as aggressive as he or she would like, explain that the judge expects this type of language and deviating from that standard may hurt the case. Emphasize that cases are won on application of the law to the facts, not overly aggressive posturing in legal documents.

Know the exceptions. Although a routine motion to compel discovery is not a time to use colorful language, there may be instances when using strong language is appropriate and ­effective—for example, when a defendant has violated a court order. When you bring it to the court’s attention, the language should reflect the circumstances, although it is not a license for name-calling. However, know your judge—reading past ­opinions is a good way to assess whether the judge will be receptive to your approach.

Stephanie S. Riley is an attorney at Grant & Eisenhofer in Wilmington, Del. She can be reached at sriley@gelaw.com.