I was speaking with one of our excellent litigation associates who is working with me on a memorandum in support of a motion to dismiss in a lawsuit in federal court. She had given me a good draft of her sections of the memo. One thing I noticed, which I see a lot, from the most senior lawyers and the most junior lawyers, and which I sometimes find myself doing, is telling instead of showing. You might see several paragraphs in a row that make correct statements about the law, each supported by a correct citation to a precedent. But there is no explanation of the facts or pleadings of the cases cited and how they relate to the facts or pleadings of the case at hand.

We had a good discussion about the draft. One thing I always say when giving feedback on drafts is to know the folks you’re working with, because different people have different approaches, and so what works for me may not work for someone else; but at the same time, think about your own approach and how you want to write when you get to the point where you don’t need anyone else’s approval. Anyway, I encouraged my colleague to think back to 1L year in law school and to the way we are taught to distinguish or analogize cases to each other. She said she didn’t think I had wanted her to take the time to delve into the facts of the cases in that way. It seemed like “1L work.” I said that delving into the facts was the heart of the common law method. We’re not French lawyers, or German lawyers! We should be who we are! (Well, I didn’t say all of that).

When you explain to a judge that the facts of our case are just like the facts of another case that came out the way ours should come out, or that the facts of our case have even more of some particular quality that led another court to the right decision, you give the judge the tools he or she needs to see why you’re right and to write a decision that makes sense of how your case fits in with the other cases.