A Journey with Judges Part I – Introduction to the Journey
Thursday, February 29, 2024
by: Tony Kirkwood, Tyson Mendes LLP

Section: Winter 2024

Several years ago, as a young lawyer at an international law firm—okay, maybe fifteen to twenty years ago, give or take—I attended a legal writing seminar led by Bryan Garner. As you know, Garner is a leading authority on legal writing who emphasizes the value of plain language. At the time, the thought of plain language writing was not only refreshing, but would result in far less wear and tear on my dictionary. Since that time, I have continually strived to improve my writing, and while I am not a great writer, I am certainly better than I once was.

By the time of that seminar, I had read hundreds of motions written by attorneys from varied backgrounds, some of which were more compelling than others. While I had not made a conscious effort to evaluate what, aside from legal substance, impacted my overall reaction to those motions, I soon realized that there was much to be learned by incorporating an additional layer to my review. Instead of simply reading to respond, it was an opportunity to learn and improve my writing, a process that is complicated by the audience we face with legal writing.  In addition to the judge, who will rule on any motion, there are three other persons that must be considered. The first two are the client and senior attorneys within the firm. The third is, of course, opposing counsel. This series is intended to provide a judge’s perspective on legal writing obtained through a series of judicial interviews.

In preparation for this introductory article, Retired King County Judge Matthew Williams was kind enough to visit with me. While he provided a great deal of insight, some of which will be addressed in later articles, he made two comments that I felt appropriate for this introductory article. The first is the importance of stating what you are asking the court to do, and why, at the beginning and end of the motion. While this may appear elementary, introductory and closing language in briefing is often overlooked, despite its importance. This is the first thing the Court will read and gives you the opportunity to summarize the dispute, the relief sought, and why the Court should grant such relief. Your reasons should be brief but compelling.

Compare, for example¸ these two openings:
First: COMES NOW, Defendant Y and files its Motion to Dismiss. Because the court does not have jurisdiction, the Court should dismiss the claims against it pursuant to Rule 12(b)(6) of the rules of civil procedure.

Second: This case involves a commercial dispute between a Washington company, X, and an Australian Company, Y. As discussed in more detail below, Y is a company formed under the laws of Australia, has its principal place of business in Australia, and does not conduct business within the State of Washington. Furthermore, the contract governing the dispute contains enforceable choice of law and forum selection provisions providing that all disputes will be brought in the District Court for Western Australia and governed by Australian law. Y asks that the Court dismiss the claims against it pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure because it lacks jurisdiction over Y and the dispute at issue.  
Judge Williams also made a second point that resonated with me. One of the key considerations when writing a motion is whether the information, or even the words used, are “useful” to the court. This, however, is a topic best addressed in the next article, which will discuss in greater detail what words or information is actually “useful.”  Spoiler alert: I am tentatively planning the next subtitle to be “What does my writing say about me.” P.S. be careful with those adverbs and adjectives . . .
As I write future articles, I could use more opportunities to talk with the judiciary, since I am relatively new to the Washington legal community. If you could send contacts my way, I’d very much appreciate it.  I can be reached by e-mail at tkirkwood@tysonmendes.com or phone at (206) 210-9599.