The Complete Lawyer

I practiced law full-time for 14 years teaching full-time. I got the reputation as someone who could exhaustively research a complex subject and present the results in a concise, well-organized manner. When you become known as a good writer, you get asked to write a lot. I spent 14 years writing pretty much full-time.

As a result, I developed an approach to reading and organizing cases, which facilitated the writing process. This approach may be old news to many of you, but given what I saw in practice, many practicing lawyers do not know it, or do not follow it.

My approach was simple, and had two steps.

First Cut: Focus On Results, Not Words Or Facts

When reading the legally pertinent cases, I focused first on the result the court reached, not what the court said or what its facts were. By focusing in my initial review of cases solely on identifying the “good” cases (those with a result that favored my client) and the “bad” ones, I created two piles of cases. For example, if I was researching whether a client might obtain mental anguish damages for breach of contract, I would put in one pile those cases holding that the plaintiff was entitled to such recovery (the “good” cases), and in the other pile, the bad ones.

I know that focusing on the result sounds elementary, but in practice I repeatedly opposed briefs from “good” law firms that relied heavily on cases that had “bad” results for their clients. My responsive brief would point out that, for example, that we agreed that the Smith case controlled and in Smith the court held mental anguish damages were recoverable on much weaker facts. I loved that. I felt bad for the other side for having lawyers who missed this basic point, but I felt that I was earning my hourly rate.

My impression as I left practice was that inattention to result was becoming a greater problem, and I attribute it to Westlaw, Lexis, and similar technologies (which I love and use regularly). It’s easy to type in “mental anguish damages are not recoverable in contract” and find cases that say those words, and so quote them in a brief, but to fail to see that, a few screens later, the court explained that, while the general rule was that they were not recoverable, “they were where . . . .” I suspect fewer lawyers read cases any more; they read screenshots. A screenshot is an incomplete picture.

For Good And Bad Cases, Figure Out Which Are Easy To Distinguish And Which Are Hard

My second step was to read all of the cases in the “bad” pile. For those that were easily distinguishable on their facts, I would write a short note on it and put it in the bottom of the bad pile. A case with easily distinguishable facts and a bad result was weak even when used by a competent opponent.

Some cases, though, had somewhat similar facts and yet reached a “bad” result. Those went on the top of the “bad” pile. Those cases would be difficult for me to distinguish, and so presented the most powerful weapons for my opponent. They deserved additional attention. If a sentence or two could explain why their facts justified a different result, I’d write out that sentence. If it took more, that case or those cases would end up at the very top of the “bad” pile.

Then I’d do the same thing with the “good” pile: some had “easy” facts to support the right result while others were less “easy” and perhaps close to my client’s facts. The cases that more easily justified the result that my client wanted than his facts were going to be weak for me. But the more cases with the most similar or analogous facts and the right result, the more difficult it would be for the other side to distinguish them and argue that a different result should be reached. Those “white knight” cases went on the top of the “good” pile.

By the time I was done with this process, writing the brief or memo was largely done: the cases gave me the pertinent legal “rules” and I had them arranged so that I knew which cases I needed to use to support my case, and which I needed to distinguish to support it. This enormously aided the legal writing process.

What I’m describing is a grossly simplified take on the process since it has to be done element-by-element. In the case of mental anguish damages, for example, if there were three exceptions to the general rule that mental anguish damages were not recoverable for breach of contract, then this process would be repeated for each of those three exceptions. If one exception had three elements to it, it had to be repeated for each of the three elements. It’s a lot of work—but it saved time, I believe, and resulted in effective advocacy or analysis.

Use Your Two Piles To Write

I always found it effective to deal with cases with “bad” results in an opening brief. Typically I would do so in a footnote, stating something like, “Of course, where the facts do not support an award of mental anguish damages, courts have denied them. See, e.g. . . . .” At that point, I’d string cite, with a pithy parenthetical making the “bad” cases sound perfectly right, but readily distinguishable. In the text, I’d focus on the most similar cases with the right result, and make the appropriate analogies or metaphors, as needed. If a case was particularly similar but yet “bad,” I’d address it in a paragraph or two, again treating it as an ally—a case whose result was mandated by different facts—not an enemy of illogic or inebriation. At the same time, the good cases were there, and organized. The few (one or two) that were most similar or analogous factually were the only cases I discussed. The rest fell into a string cite footnote, again with parentheticals explaining their pertinence and result.

In this way, creating two piles and prioritizing them guided my writing. It may be simple, but it worked for me. I hope it will help you.