Photo: Pavel Ilyukhin/Shutterstock.com

As someone who has practiced for 30 years and won numerous legal writing awards, I'm often asked for advice on how to write to make the best impression on judges. While a lot of this will depend upon the particular facts and law at issue in each case, let me offer some pointers on how not to write—thanks to the bad impressions made by lawyers in the following cautionary tales.

It's a Pleading, Not a Screenplay

Lawyers are frequently reminded that their complaints or petitions need to tell a story. While that's true, it's also good to remember that your audience is a judge rather than a bunch of Hollywood studio executives in a "pitch" meeting.

Lowell, Massachusetts lawyer Ilya Liviz will probably remember that next time, after being threatened with Rule 11 sanctions by U.S. District Judge Indira Talwani last December for filing a complaint that was in the form of a screenplay. Liviz chose the unusual format to draw attention to her civil rights lawsuit against Massachusetts' highest state court on behalf of an elderly grandmother whose driver's license was suspended for allegedly misusing her husband's handicapped parking placard. Liviz labeled the pleading a "Legal Code Jurist Production," included a "plot" summary, and divided the complaint into six acts, complete with stage directions, characters, and descriptions like "slight shadow appears as the officer approaches the unsuspecting Grandma; with his vehicle blocking her in, and the lights fully flashing." Liviz says the reason for filing the 18 page complaint in screenplay form was to attract attention. "I needed to get attention to the real issues here . . . the fact that people's rights are being deprived by the judiciary."

Judge Talwani, however, was not amused, and entered a December 3 order warning Liviz that his creative pleading doesn't satisfy federal procedural requirements for a "short and plain statement" showing entitlement to relief. Hopefully, Liviz's next pleading won't begin with "Coming soon, to a theater near you."

It's a Brief, Not a Comic Book

In 2012, attorney Bob Kohn was facing a quandary. He had been invited to submit an amicus brief in a landmark antitrust case brought by the Department of Justice against book publishers like Apple for ebook price fixing, but U.S. District Judge Denise Cote of the Southern District of New York had rejected his initial 25-page document. Faced with a five-page limit imposed by Judge Cote, Kohn decided on a (graphic) novel approach: he submitted his brief in comic book form.

Working with an illustrator who attends Harvard with Kohn's daughter, the music licensing lawyer relied on pictures and word bubbles to explain all about illegal downloading and how traditional notions of supply and demand may not apply to ebooks. Publishers Weekly called Kohn's cartoon brief "brilliant," a "not so subtle jab at the court for limiting such a complicated brief to five page briefs," and "widely digestible for the general public." Judge Cote, alas, was not persuaded. Just a day after Kohn submitted his brief, she entered a judgment approving the DOJ's settlement that Kohn was opposing. The moral of the story: judges may say that they want you to draw them a picture, but don't take it literally.

It's a Brief, Not Your Chance to Show Off Your Pop Culture Knowledge

In January, Reed Smith partner Eric Dubelier learned that U.S. District Judge Dabney Friedrich didn't share his fondness for pop culture.

Dubelier represented Concord Management and Consulting, one of a number of Russian entities and nationals accused of trying to influence the 2016 presidential election. In a brief questioning the special counsel's trustworthiness, Dubelier chose to invoke lines from the 1978 movie "Animal House" (analogizing the special counsel's argument to Otter's advice to Flounder—"You f-ed up—you trusted us") and Tweety Bird. Judge Friedrich told Dubelier that he needed to "knock it off" with his colorful briefs, describing them as "unprofessional, inappropriate, and ineffective."

And Judge Friedrich is hardly the only jurist to find some pop culture references to be tone deaf. In 2010, the Montana Supreme Court took exception with the choice of movie quotes employed by appellate counsel for Duane Belanus, who was appealing a rape conviction. When Belanus' brief on appeal opened with an expletive-laden quote from former boxer Mike Tyson in the 2009 film "The Hangover," the court called it "a peculiar choice for this case, given Tyson's conviction for raping an 18 year-old girl in Indiana in 1992, where his defense (like Belanus' here) was that the sex was consensual." The court observed that Belanus' attempt to channel that Tyson quote to excuse "outrageous acts committed while extremely intoxicated" to be "as delusional as it is unbelievable, and it is not surprising the jury didn't buy it."

John G. Browning is a Dallas-based attorney who handles a wide variety of civil litigation in state and federal courts.