Essay by Honorable Chief Judge Morey L. Sear
The United States District Courts are trial courts. This simple fact conjures up in the minds of most litigants, many lawyers, and some judges images of vigorous cross examination, dramatic oral argument delivered to attentive jurors, mounds of documentary evidence, extravagant demonstrative aids, and other sights and sounds of trial practice. Visions of a well-structured and persuasive brief are seldom-if ever-the first images that dance through lawyers' heads when asked to think their favorite thoughts about trial courts.
Statistics tell us that about six percent of all cases filed in the District Courts are determined by trial. The vast majority are settled. A significant portion, however, is determined in the trial courts' motion practice, where oral advocacy has become decreasingly important-and in some courts, including my own, extremely rare. Thus, while the art of written advocacy is often extolled as an integral part of appellate advocacy, its virtues and benefits are no less important in the trial court. This is especially true in complex cases in which motion practice and the well-crafted brief are important weapons in the arsenal of a good litigator.
This essay will briefly outline what I believe are the top ten suggestions I can offer for good trial court briefing, at least for motion and trial briefs filed in my Court. Call them “Sear's Unabridged Briefing Tips” (“SUBTips” for short), if you like. Since all are equally important, I offer SUBTips in no particular order of significance as follows:
(1) Know the rules, especially the Local Rules and the requirements concerning briefing in the Court's Civil Justice Reform Act plan and uniform orders.
(2) File timely by meeting all deadlines.
(3) Prepare before you write by honing and focusing your legal and factual arguments.
(4) Be brief.
(5) Be accurate in your presentation of the law and evidence.
(6) Write clearly.
(7) Cite binding precedent.
(8) Direct the judge to specific parts of documents, depositions, and other evidence.
(9) Exercise good faith.
(10) Be civil.
About the Author
Honorable Chief Judge Morey L. Sear. Chief Judge Sear has served as United States District Judge for the Eastern District of Louisiana since 1976. He was elevated to Chief Judge in 1992. He received his J.D. from Tulane University in 1950. He also served as United States Magistrate for the Eastern District of Louisiana from 1971 to 1976.
Citation
70 Tul. L. Rev. 207 (1995)