Last week, while I was waiting for a court conference back in “antechambers” (that is, the part of the judge’s office that isn’t the judge’s actual “chambers”), I spotted this sign, strategically placed so that every lawyer who came through would see it:

we do not dispense justice via the phone

They gave me permission to take a picture (always ask first — courts get sensitive about that), so long as I didn’t say where I took it. The judge’s clerk put it up one day after a string of calls from lawyers all trying to get the clerk to tell them how the judge would likely rule on an issue. In my 3L clerkship clinical, I lost track of the number of times lawyers tried to extract from me information about what a judge was thinking over the phone. I was sorely tempted to tell them all, “the judge is very upset with you, but I can’t say more,” then hang up, leaving them bewildered and terrified.

After the court conference where I took the picture, I went to a lawyer cocktail party–one of many this season–and chatted with judges and clerks. One clerk who was just finishing their second year said they could easily tell, when reviewing briefs, which lawyers had clerked and which lawyers had not. The lawyers who clerked were more likely to get to the point, citing only relevant cases (with appropriate parentheticals) and key parts in the record. The lawyers who never clerked rambled at length, citing either nothing at all or way too much, while trying to obscure or ignore difficult issues.

As I wrote not too long ago, an ounce of empathy for the reader is worth a pound of grammar and vocabulary. It’s easy for litigators to lose sight of how cases are actually decided, because we spend so much time being adversaries with no disinterested parties around to restore a sense of perspective. Every letter, every call, and every deposition feels like a pistol duel in the middle of the desert.

But litigation isn’t a duel, and it isn’t like a football game or a boxing match, you don’t really unambiguously win by scoring more touchdowns or knocking out your opponent. You don’t even really “win.” Rather, someone who has sworn an oath to be impartial is suppose to dispense justice from the bench or the jury box by independently coming to a conclusion about your client’s case. Spend your energy helping them do that, instead of trying to defeat the other side, with clear, concise writing and argument.

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The ABA Journal was kind enough to include me again on their Blawg 100. If you like what you read here, I’d be obliged if you’d click over and vote for Litigation and Trial in the “Tort/Consumer” category (voting closes December 19th). I’m going to lose again to Abnormal Use, run by Jim Dedman, and that’s quite all right. He’s one of the nicest folks I’ve met, and one of the few bloggers with the brains and the guts to invite guest posts from bloggers with whom he disagrees, like yours truly.