Here’s a little lesson I learned about legal drafting when I was a new attorney. One of my first pleadings was an eight-count complaint. The first seven counts were exceptionally strong. But, not wanting to exclude anything, I added the eighth count which was a stretch, and would be very difficult to prove.
I appeared before a senior federal judge on a motion to dismiss which had been filed by the defendants. Although the judge denied the motion, what he said to me afterwards made a bigger impression. “Mr. Kaye, you have a very nice Christmas tree with the first seven counts,” he remarked. Then, referring to the eighth count, he inquired, “Why would you want to add an extra ornament to the tree?”
He was right. One of the lessons I learned early on about legal drafting was to exercise restraint in the way I manage drafting complaints or setting forth claims.
Less can be more. Forcing jurors to reject mediocre or losing claims can have a snowball effect.
As attorneys, we’re trained to be as thorough as possible. In legal drafting, we are often taught in law school to search for every available count they can possibly plead. Defense attorneys look for every available affirmative defense, and often insert defenses just as a precaution. There is real benefit, though, in not saddling your case with claims or defenses that will be too difficult to prove or which will force a jury to make close calls that don’t benefit your client. If a jury thinks that you as an attorney are on thin ice with a claim or defense, their reticence to buy in may well cross over into other more solid claims or defenses.
By not adding the extra “ornaments”, you’ll find that you have more time to focus on your best claims or defenses. That is a legal drafting best practice and a winning strategy!