Thursday, November 14, 2013

Overcoming Weakness

There is always one complaint about prosecutors who leave for private practice or other ventures. While their trial skills are usually further developed than similarly situated colleagues, their legal writing skills leave a lot to be desired. The reason? If you can believe it, most motions and arguments in criminal cases are boilerplate and ADAs abuse form responses.

That seems odd, doesn't it? Criminal cases where the stakes are so high in terms of individual freedoms  and the attorneys on both sides are relying on decades of materials that other people created. In the civil world, where arguments usually stem from money, attorneys constantly proffer new work and varied legal arguments.

I noticed my own deficiencies in this area a few years ago. What do I do when I notice a weakness? Try to turn it into a strength. I have spent so much time training younger assistants over the last years that I have done away with all the form and boilerplate material that floats around the office and urged others to do the same. The form response does  not allow an attorney to actually understand the law or its technicalities. That doesn't mean I start from scratch each time. It means I actually read the cases I'm citing and tailor my paperwork to actually respond to the legal arguments instead of just relying on work someone else did. The reason I've noticed my writing has improved is because I've spent the last week slaving over a memorandum of law that, as of right now, stands at 75 pages. A memorandum of law is a concise argument stating why the court should rule in favor of your side.

The hearings that created this behemoth relate to four defendants with six different crimes, and over 20 witnesses. In my early days of DA life, before I decided to concentrate on becoming a better writer, I never could have accomplished this task. I would have submitted some half-hearted effort that wasn't well researched and would put lawfully obtained evidence in jeopardy of getting suppressed.

Instead, I am creating something I am truly proud of and will hopefully destroy the arguments my adversaries are proffering, where they are relying on some clear boilerplate language and mine is well-researched and crafted. The memorandum as it stands is too long and will probably shorten a bit, but there were so many issues related to different statements, different identifications, recovery of property, search warrants, entry into homes, and the like that every issue is being litigated.

My writing has improved significantly over the last few years, coinciding with when I began this blog. It was part of the reason I started Prosecutor's Discretion too. I wanted feedback on my writing style. Do people read it? Do people understand what I'm saying? Is it entertaining, informative, clear? By the amount of people that keep checking out the site every month, it shows I must be doing something right.

In the past year I've been published in a legal journal (hopefully more to come of this when I get time) and had a memoir piece published in a local newspaper. Five years ago all of this would have been impossible. What have I done different? Focused on the weakness and absolutely now I know it is one of my strengths.

Now to get some of that fiction published . . .


  1. We had the same problem when I worked as a public defender. You don't have enough time to re-invent the wheel each time you file a new motion. So you go to your colleagues to see what they have written. A single error in the law can thus be multiplied significantly.

    It is only now that I do retained work that I can devote the time I need. I will start from scratch every time I need to do a new motion. That motion will then serve as the basis for later motions on the same issue.

    The other phenomenon I noticed is that the prosecutors I worked with in that city only tended to read the headnotes of the cases they cited. Or they referred to a case summary included in their manual. They had no idea about what some of these cases were really about. I very much enjoyed that look of panic in the prosecutor's eyes when he/she realized you knew the case much better than he/she did.

    1. I would have thought your time would still be limited in the private world. If you spend hours on a motion, doesn't that cut into the ability to make money on other cases, unless you are doing hourly billing?

  2. I am personal fan of your writing style and think you speak to the reader well. The markings of a good writing style is being able to read effortlessly as if the writer were speaking his/her own words. Of course that changes when you're writing a legal argument where your audience is a black robe, but I truly believe that even legal writing requires a writer be comfortable with their personal style.

    As a fellow prosecutor I too don't have much time to really exercise my writing skills. I recently had a sentencing argument where the attorney for the defendant submitted a 15+ page memo a couple days before the hearing. There was no way I could have taken the time to do the same leading up to the hearing but I think it's important that judges read a well tailored, researched, and thought out argument from the State. It's the nature of the job in that we don't have the time or resources to match those of private attorneys who argue more through their writing, but an opportunity to do so every now and then shouldn't be wasted. Good luck on your 75 page memo!

    1. Thank you. It is usually the case that the writing we do matters little because our adversary drops his paperwork on us the night before the argument without giving us a chance to respond at all!