Example 14.7

Takeaway point 14.7: At the trial court, you know who your judge is, so profile him or her and let your writing reflect that knowledge.

Trial lawyers usually know which judge will read their filings.

· In which subjects is the judge an expert (so that you know how much background to provide about the topic and how sophisticated your arguments can get)?

· How has she resolved similar cases in the past?

· Has she previously credited or praised any experts in the same subject as your dispute (so that you can hire them)?

· Which authorities in the subject of your dispute — including treatises and academics — have her past opinions relied on?

· What do the judge’s past opinions tell you about her general jurisprudential views (which might affect the arguments that you raise and your willingness to settle the case)?

· In public speeches, what subjects did she talk about? Hunting? Human rights? Harry Potter? You can use analogies and anecdotes more effectively when you know what your judge likes and what she’s interested in.

In other words, adapt your approach to your judge — the above questions are just a starting point.

This profile-your-judge approach was used successfully on behalf of a woman who was hounded by a debt collection agency. The woman (Hicks) filed a lawsuit against the company under the Fair Debt Collection Practices Act (FDCPA). She sought damages and an injunction to prevent the debt collector from calling her phone. The relevant statute prohibited collectors from engaging in various abusive and harassing “communicat[ions]” with consumers. The debt collectors, however, argued that they had not made “communications” with Hicks because they did not place the calls personally (they used an automated system) and because they had not spoken with Hicks (because the auto-dialer left only voicemail messages). Hicks’s lawyers here counter the argument that no “communications” occurred.

Source: Plaintiff’s Reply Memorandum in Support of Plaintiff’s Motion for Summary Judgment from Hicks v. Client Services, Inc., No. 07-61822-CIV., 2009 WL 2365637 (S.D. Fla. June 9, 2009).

Some writing professors believe that adding a salutation or title to a client’s name makes him or her more dignified. This approach works sometimes, but don’t always follow it. Assess whether the value justifies the increased wordiness. For instance, the salutation is usually worth including in a divorce case to avoid ambiguity or for someone like Hicks, whom you want to present as a dignified victim rather than as a someone who is avoiding her financial obligations (as the other side will try to depict her).

Hicks shows one of the techniques that Chapter 5 explored: diminishing an adverse authority (rather than merely distinguishing it).

Emphasize only the words in a document or authority that matter most. Here, the word “indirectly” suggests that the communication can occur through a voicemail.

Few authorities will be more convincing to a judge than cases he or she decided, but few techniques create a greater risk of seeming manipulative. Proceed, but do so carefully and respectfully.

The motion reminds the judge that he relied on these exact cases, which is more persuasive than merely citing them.

While this sentence is a bit long, it also manages to explain exactly what the case held in a way that likely resolves the issue in Hicks’s favor. It also reminds the judge what the case held.