Avoid a Benchslap: Four Writing Tips You Ignore At Your Peril

By Abigail Perdue

Above the Law’s founder, David Lat, has been credited with coining the term “benchslap” in 2004.[1] It generally refers to a particularly scathing insult from a judge to an attorney, litigant, or on occasion, another judge.

Benchslaps occur in many forms and for many reasons. For example, in Mannheim Video v. County of Cook, a Seventh Circuit panel “benchslapped” counsel by pointing out that the “ostrich-like tactic of pretending that potentially dispositive authority against a litigant’s contention does not exist is as unprofessional as it is pointless.”[2] Likewise, in denying a motion for disqualification, a U.S. District Court Judge concluded that the Defendants “aspire[d] to be magicians. . . . [L]ike David Copperfield’s tricks, their motion [was] nothing but smoke and mirrors.”[3] He expressed doubt that counsel had “adequately research[ed] the case law”[4] and warned them to “think twice before filing such a baseless motion” or “risk being sanctioned.”[5]

It’s no surprise then that all attorneys, especially new ones, strive to avoid the dreaded benchslap. To do this, know your audience—generally, a very busy judge and the judge’s very busy law clerk(s).

To understand how heavy the average judge’s docket really is, consider this: in 2016, there were over three hundred thousand civil cases pending in federal district courts.[6]

Despite their monumental workload, judges are usually only permitted to hire between one and four law clerks to assist them, so their law clerks are often inundated too. Although practices vary by chambers, law clerks generally review all the briefing in a matter and synthesize it, as necessary, into a bench memo for the judge. They may also take first cuts at drafting orders and opinions. But if an average, active federal appellate judge has four law clerks, that means that for every single brief a law clerk reads, his or her judge must read four! So one of the best ways to avoid a benchslap is to do whatever you can to make your reader’s life easier. Here are four ways to do just that:

Tip #1: Respect Your Reader’s Time: Use plain language. Narrow the issues on appeal and clarify them for your reader. When it comes to advocacy, sometimes less is more. For example, an attorney was benchslapped for raising twenty-nine issues on appeal. Clearly displeased, the court observed:

The arguments made are often unduly repetitive, in a meandering sequence which sometimes tracks the six questions presented and sometimes does not. . . . an appellate brief containing ten or twelve points raises a presumption that none of them have any merit. . . . zealous representation does not require, or even benefit from, such all-inclusive “kitchen sink” advocacy.[7] In other words, don’t throw everything and the kitchen sink into your brief. Choose a handful of your most compelling points and order them accordingly, placing the strongest arguments first and affording them the most space.

Most importantly, microedit your work to make sure that it is concise and precise. Microediting involves carefully editing each sentence within a paragraph and each word within a sentence. If something doesn’t add value, cut it. “Trim the foliage” so that your key points shine through. Generally avoid nominalizations and passive voice. For example, “[a]n examination of the expert witness was conducted by defense counsel” becomes “Defense counsel examined the expert witness.” The latter sentence conveys the same information in six words instead of eleven. Considering the tight page limits that courts impose, microediting allows you to say twice as much in half the space, which any busy reader will appreciate. Always consider if there is a more succinct and clearer way to express an idea.

There are three important caveats: (1) Never make a change if doing so introduces imprecision or a lack of clarity; (2) sometimes passive voice is helpful for persuasive purposes as when you wish to distance your client from a “bad” action; and (3) in persuasive advocacy, sometimes repeating an idea several times is permissible if you wish to cement it in the reader’s mind.

Tip #2: Know the Rules and Follow Them: When it comes to filing, rules are made to be followed, not flouted. They exist for a reason and reflect best practices that the court believes will promote justice, efficiency, and other laudable goals. Blatantly disregarding them could undermine your client’s cause and harm your professional reputation. For example, a S.D.N.Y. judge benchslapped Amazon’s counsel for disobeying the rules on double-spacing so Amazon could submit a brief that “substantially” exceeded the page limit. The outraged judge concluded that “the flouting of this court’s individual rules was a deliberate choice . . . to gain some slight advantage in this litigation.”[8] He ordered the firm to file a properly formatted brief and pay over $1000 in sanctions.[9]

Likewise, never engage in prohibited ex parte communications, which refer to an attorney communication with the court about a pending litigation outside the presence of opposing counsel.

Though this rule is clear, even seasoned attorneys occasionally telephone chambers without having opposing counsel on the other line or email chambers without copying opposing counsel. No matter how minor your question or request, it’s still a prohibited ex parte communication unless opposing counsel is included.

Tip #3: Don’t Assume the Reader’s Knowledge: When you’re immersed in a litigation, you become a subject matter expert. Whether it’s a novel piece of computer software in a patent case or a rare medical condition in a malpractice suit, you deeply understand the technical terms of art. However, your reader may not, and that can be easy to forget. Accordingly, educate your reader by providing a thoughtful legal landscape that lays a solid foundation for the concepts necessary to make the right decision. Define terms of art, such as medical or industrial lingo, in a footnote. This will prevent your reader from wasting time conducting outside research to unpack terminology that you should have defined. Anticipate the questions that will arise in your reader’s mind while he or she is digesting the brief and answer them. Dorland’s Medical Dictionary is a great resource. Graphs, charts, diagrams, and other demonstratives can also be incredibly helpful in matters like complex patent cases.

Tip #4: Support Every Assertion: Ethos, or credibility, is critical to persuade. So use accurate cites for each factual and legal assertion. A law clerk should never have to do supplemental research to understand the matter before the court. That’s your job. Do not mischaracterize facts or law. Shepherdize citations, including on the day of the filing, to make sure the authority upon which you rely remains good law.  You are ethically obligated to provide all controlling authority to the court, even if it undermines your client’s position. Furthermore, it’s not enough to merely cite a case or state a rule of law; instead, use explanatory parentheticals, citation sentences, or short case illustrations to explain how the source supports your position. For instance, an explanatory parenthetical can provide factual context focusing the reader on the facts of the case that are analogous to your case. While the reader will probably pull the case, it’s helpful to flag why you cited it in the first place by highlighting the probative facts, reasoning, or language therein. While you should be careful that your brief does not lapse into a series of case summaries, also avoid the other extreme of merely including one lengthy string cite after another.

For more tips, check out my next column — More Ways to Avoid a Benchslap — and read my latest book, The All-Inclusive Guide to Judicial Clerking (WestAcademic Publishing 2017) for another behind-the-bench perspective.

[1] Jeffrey Toobin, SCOTUS Watch, The New Yorker (Nov. 21, 2005), https://www.newyorker.com/magazine/2005/11/21/scotus-watch; Article III Groupie, Bench-Slapped! Reinhardt v. O’Scannlain, Underneath Their Robes (June 24, 2004) http://underneaththeirrobes.blogs.com/main/2004/06/greetings_welco.html.

[2] Mannheim Video, Inc. v. Cty. of Cook, 884 F.2d 1043, 1047 (7th Cir. 1989) (quoting Hill v. Norfolk & Western Ry., 814 F.2d 1192, 1198 (7th Cir. 1987)).

[3] Liberty Mut. Ins. Co. v. Commer. Concrete Sys., LLC, No. 4:16cv658-MW/CAS, 2017 U.S. Dist. LEXIS 50786, at *2 (N.D. Fla. Apr. 1, 2017).

[4] Id. at *16.

[5] Id. at *20.

[6] U.S. Courts, Federal Judicial Caseload Statistics 2016, (June 2016), http://www.uscourts.gov/statistics-reports/federal-judicial-caseload-statistics-2016.

[7] David Lat, Benchslap of the Day: Sometimes Less Is More, Counselor, Above the Law (Jul. 19, 2017), https://abovethelaw.com/2017/07/benchslap-of-the-day-sometimes-less-is-more-counselor/.

[8] Staci Zaretsky, Boutique Firm Gets Benchslapped for Trying to Sneakily Evade Court’s Double-Spacing Requirements, Above the Law (Apr. 5, 2017), http://abovethelaw.com/2017/04/boutique-firm-gets-benchslapped-for-trying-to-sneakily-evade-courts-double-spacing-requirements/.

[9] Id.