Writing a Brief, Trying a Case and Negotiating a Settlement that "Crackles with Power"
(pictured: the indispensable McElhaney Trial Notebook)
From the ABA Journal E-Report, comes James W. McElhaney's article Legal Writing That Works : Persuasive briefs are the product of tough choices about substance, style
"Writing a brief," counsels McElhaney, is like trying a lawsuit."
You start with your theory of the case—the basic idea that not only explains the legal theory and the factual background but also ties as much of the evidence as possible into a coherent, credible whole.
That means making choices. You throw out arguments that aren’t plausible.
You pick between the inconsistent legal theories. You cull out the weak points. You toss out whatever gets in the way. You discard what doesn’t need to be said, even if it doesn’t hurt.
What’s left is tight. Lean. Spare. It crackles with power because it’s undiluted with stuff that doesn’t matter.
Doesn't trial and motion practice focus on the parties' positions, you ask, and the settlement of litigation on the parties' interests.
Yes, but only after you've established that you have the ammunition necessary to make your adversary your partner in the mutual problem of making the litigation go away for a price (or on terms) that make a negotiated agreement far better than potential victory at trial.
I tell people that I prefer the symmetrical to the "asymmetrical" lawsuit -- both as a litigator and as a mediator. What is an asymmetrical lawsuit? One where the plaintiff is an individual represented by an over-burdened sole or small practice contingency fee litigator and the defendant is a repeat player -- an insurance carrier or other "deep pocket."
Why? Because all too often the plaintiff is unwilling (or unable) to devote the resources necessary to pose a real threat to the defendant's interests (costs of defense and potential verdict or judgment) despite the merits of the plaintiff's case.
In these cases, the defendants can afford to wear the other side down in court (why should I settle?) and often resist settlement because they firmly believe they are victims of legal extortion (yes, this applies even to insurance carriers who work by and through people who resist and resent being pushed around by an aggressive opponent who appears to be bluffing).
The solution?
Although it is important to convince the mediator that your case has real merit and genuine potential for judgment, it is critical to impress your opponent with:
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Your theory of the case in which the evidence tells a coherent, credible story, and one of injustice that a court or jury might respond to with sufficient passionate intensity to inflict some "unjust" harm on your opponent; and,
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Your ability to make good choices -- "throw[ing] out arguments that aren't plausible," "backing up those that are with the least amount but most compelling detail," and "pick[ing] between the inconsistent legal theories. . . . cull[ing] out the weak points . . . toss[ing] out whatever gets in the way. . . [and] discard[ing] what doesn't need to be said. . . "
If "[w]hat remains "is tight. Lean. Spare. . . . crackles with power" you'll force your opponent to do some intensive interest-based negotiation to arrive at a settlement that is best for both of you.
