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September 29, 2010

Jim McElhaney: "Killing Your Case With Clutter".

Hey, you're brilliant--but it doesn't matter. Too much information, big guy. See this one by the legendary James W. McElhaney in the current issue of the ABA Journal. Note also in this piece how McElhaney writes--this is how he always writes--in addition to learning something about trial work. He's been writing in Non-Wank Speak for over three decades. No Legalese. It's People-Speak--and it sings. Either written down or spoken in a room. Excerpts:

Ernie’s opening followed a strict chronological order that kept him hopping back and forth from one topic to another. He did it in such meticulous detail that it took 12 different charts set up on wooden easels around the courtroom to cover everything he said.

While all this was going on, one of the associates from Ernie’s firm leaned over and whispered, “I’ve never seen anything like this before. I guess this is what people mean by a tour de force. Anyway, Ernie doesn’t need these outlines. You can tell by his pace that he’s got it all memorized. He’s doing it this way because he read somewhere that people are more likely to believe something if they see and hear it at the same time.”

I didn’t answer him because I was concentrating on how Ernie was coming across to the judge and jury. It bothered me that he kept the same clipped pace going the entire time. By the time he hit the 30-minute mark, everyone in the courtroom was looking more than a little dazed.


Posted by JD Hull at September 29, 2010 11:59 PM


This was not a problem before it became the mission of every trial judge (federal and state) and most jurors to deny every plaintiff a fair trial. Lawyers then had no concern about time and they could organize and give the statement necessary for the case. No complex case can be explained in 45 minutes.

Jim is a great fellow but his writing style doesn't work--it lacks social proof, for starters.

If the style worked, given the billions at stake in legal briefs, wouldn't the smart brief writers follow him and wouldn't smarter clients have long ago let him retire based on the fees won by his writing?

Judges who say they want this kind of writing lie, even to themselves, just as jurors lie when they say they will decide the case based on the evidence.

read Dan Ariely

if you doubt me, explain how a judge will overcome her pavlovian response to legal writing that is different.

Plus, most judges are smart enough to know that if you write this way it says you are trying to convince and they all resist being convinced.

In sum, cite old rather than new cases and write like assistant united states attorneys.

If you don't do federal criminal work then you don't understand that they have the formula for winning writing down to a "t" and they never say anything.

Posted by: John Davidson at September 29, 2010 09:33 PM

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