Legal Writing 201-good uses of boilerplate
by: Rjohnson • January 29, 2014 • no comments
My practice involves a lot of writing, and my hard drive is filled with old briefs and memos. The first thing I do when starting a new document is to open the most-applicable document I have written recently, and I’m sure that everyone does it pretty much the same way. I have lengthy passages that I have used over and over again (“The right against unreasonable searches and seizures is protected by the Oregon and United States Constitutions…”)
So, I’m certainly not going to tell you not to use boilerplate, by which I mean an often-recycled summary of authorities on a common legal issue. There’s no need to re-write a summary of the law of search and seizure or application of the sentencing guidelines every time it comes up. But I urge you to avoid a specific bad use of boilerplate, one that prosecutors seem to use reflexively.
Don’t start with boilerplate. Ever. I can’t tell you how many briefs from the AG’s office start with three or four excruciatingly dull pages on the law of post-conviction. If you start out with boilerplate, then, if you’re lucky, the judge will skip over that part, looking for where you start talking about your case. If you’re not lucky, the judge will lose interest and set the memo aside.
Remember whom you’re writing for. (I think this is probably the first rule of good writing.) The judge probably knows the law, and, if not, probably knows how to look it up. (If the judge doesn’t know the law and doesn’t know how to look it up, you probably are not going to fix those problems in this case.) The judge does not know the facts of your case. Start with those. So, rather than “The right against unreasonable searches and seizures…” start with “After stopping Mr. Smith for a traffic infraction, Officer Friendly unlawfully extended the stop by…” The boilerplate belongs at the end, where the judge can skip it without hurting your argument. That way, you’re most likely to have the judge’s attention for the most important part of your argument.
In the rare case where the issue is really about the law, and the facts aren’t in dispute, start with the law. But that’s not boilerplate; when that comes up, you’ll write the argument for the particular case. Usually the judge isn’t really making a decision about the law, but rather applies settled law to unsettled facts, and the real dispute is about facts and proof. And if the judge only has time to read two pages of your motion, you haven’t accomplished anything if the two pages are about hearsay and confrontation law that the judge already knows.
I’m certainly not telling you not to include a discussion of the applicable law; I’m just telling you not to start with it. Boilerplate is helpful to preserve issues, to federalize issues if the case might go federal, and to refresh the judge’s memory. A well-organized boilerplate passage helps me to organize my thoughts, and helps to structure my written argument and my argument at the hearing. But how often do you actually read the boilerplate in others’ work? Do you really expect the judge to read yours?
