by Hon. Randall H. Warner
Hon. Randall H. Warner
is an Arizona Superior Court Judge
in Maricopa County.
This column provides tips from judges
on civil practice. If there are practice tips
you’d like covered – or if you are a judge
who would like to write a column –
write to firstname.lastname@example.org.
CIVIL PRACTICE POINTERS
We live in the age of the zinger.
On the news, on Twitter—even in judicial
decisions—we are obsessed with the clever
one-liner, the burn, the you-got-served.
The trend goes all the way to the top.
From the U.S. Supreme Court we’ve recently
seen gems like “Welcome to Groundhog
Day,” 1 “What chumps!” 2 and “THE CHIEF
JUSTICE… trumpets repeatedly.” 3 As if the
Justices were contestants in a freestyle rap
We lawyers love our pithy phrases, and
I’m more guilty than most. 4 As an advocate,
I took pride in my clever intros and snappy
little analogies, thinking they gave my writing an edge, kept the reader’s attention and
drove home my point.
But they don’t. At best, zingers have little
or no effect on the judge’s decision. At worst,
they distract or annoy.
It’s not that zingers are inappropriate in
your legal briefing. It’s that they’re just not effective.
For one, most are cliché, for instance:
• “Plaintiff’s argument is a house of cards.”
• “Defendant’s argument turns the rule it on its head.”
• “This case has truly gone through the looking glass.”
Rare is the zinger we haven’t read before—which isn’t surpris-
ing when you think about how many motions, responses and
replies a trial judge reads.
More than that, one-liners tend to be a form of telling instead
of showing, and we all know the adage, “Show don’t tell.” No
judge is persuaded by being told the other side’s position is
wrong, ludicrous or disingenuous. Rather, they are persuaded by
the evidence, legal authority or reasoning that shows your position is correct. Starting a reply with “The Response is the stuff of
fantasy” does nothing to convince the court that it really is.
When Justice Scalia wrote “Welcome to Groundhog Day” in
his Glossip v. Gross concurrence, did it move anyone’s view on the
constitutionality of capital punishment? When Justice Ginsburg,
writing for the majority in Arizona State Legislature v. Arizona
Independent Redistricting Commission, accused Chief Justice
Roberts of “trumpeting” his point, who did
that convince? It wasn’t Chief Justice Rob-
erts, and probably not any reader.
Of course, the media loves zingers, and
it sure does feel good to write them. So if
your goal is to feel good or get press coverage, have at it. But if your objective is to
persuade the court, stick to law, facts and
persuasive reasoning. Save the zingers for
1. Glossip v. Gross, 135 S. Ct. 2726, 2746 (2015)
(Scalia, J., concurring).
2. Arizona State Legislature v. Arizona Indep.
Redistricting Comm’n, 135 S. Ct. 2652,
2677 (2015) (Roberts, C.J., dissenting).
3. Id. at 2667 (Ginsburg, J.).
4. See, e.g., this column.
tell rather than