The McNaughton Rules: Think Like a Judge; Write Like A Judge

Michael McNaughton 
Michael McNaughton
April 13, 2015

A cardinal rule for any form of persuasive writing is to “know your audience.” Too often, lawyers forget this.

When writing a legal brief, remember that your primary audience is the judge who will decide the matter. Your audience is not the opposing counsel or party (they will never agree with your position), nor is it your client (the brief is written for your client, not to him or her). Understand that when ruling on any matter, a judge is looking for an outcome that is grounded in law, fair, reasoned, and respectful to the parties. Your brief should adopt that perspective by persuading the judge that your position meets those criteria.

Write your brief the way a judge would write his or her opinion. A good question to ask is: “Would a judge be comfortable restating my arguments verbatim in his or her written opinion?” If the answer is “yes,” you have successfully written from a judge’s perspective and have made it easier for the judge to rule in your favor. If the answer is “no,” you are essentially asking the judge to reinterpret or cut-through your arguments on the way to reaching a decision.

So, drop the hyperboles and make-weight adjectives (a judge’s opinion rarely resorts to them). Resist taking swipes at your opposition (judges hate this and will see you as the “bad” person). And, avoid throwing in the weak “alternative” arguments that have little chance of success (but may have a great chance of undermining your credibility). Those, and other common mistakes, only distract the judge, and fail to address the only question that the judge, your audience, is asking: “Why, under the law, should I rule in your favor?”