During my time at Beloit College, I spent too much time playing frisbee golf, drinking Keystone Light, and getting mad at Ryan Schur and Chris Deszynski while playing FIFA 2005 even though I knew their only purpose in playing the game was to trash talk me until I snapped. But I did learn a few things from the excellent writing professors at Beloit and an important one is that it is better to “show” the reader something than “tell” them. For example, I can just tell you that I’m one of the most heroic and successful people you’ve ever met or I can let you arrive at the same conclusion by writing that, in the last week, I have won four NBA championships (with the Knicks!), saved Seattle from an overzealous government organization (with good karma!), and qualified for the Champion’s League with Brentford F.C. (almost impossible, just ask Brentford fans). Do you see how you might be suspicious that I was a hero and a success if I just told you, but you truly believe it because I showed you? That’s the power of showing, not telling.
And lawyers screw this up all the time. We (meaning other lawyers, not me — I’m using the “Throw Other People Under the Bus We”) love to tell, not show. Just yesterday, a brief filed by an opposing lawyer mentioned my client’s “outrageous behavior,” called every argument I made in my brief “untenable,” said that I had “utterly failed” to explain why I should win, and concluded by arguing that he should win because “enough is enough.” For those of you who aren’t litigators, I can assure you that this brief is in no way a rare occurence in the profession. It is the rule, not the exception. But if you were able to stay awake while reading our briefs, I think most rational people would think that I should probably win on three of the issues we are arguing about and he should win the other — and my guess is that we both know that. And I doubt you would find that my client’s behavior was “outrageous”, that I had “utterly failed” in my brief, or that the doctrine of “enough is enough” had to be invoked because the opposing lawyer only told the reader these things. He didn’t show them.
So why do lawyers do this? Judges hate it, I hate it, and they would for sure get a B- from Shawn Gillen for that type of writing. (Talk about an unholy trinity of people you shouldn’t make mad!) My guess is that it’s a combination of unsavory factors: a little bit of everyone-else-does-it-that-way, some he-wants-to-be-a-bulldog-lawyer-well-I’ll-show-him-who-the-real-bulldog-is, a dollop of old-fashioned laziness because it is easier to say the other side is full of it than to show that they are full of it, a sprinkle of the judge-is-going-to-think-his-case-is-better-unless-I-act-just-as-outraged-as-him, and finally the fact that your client really likes it when you say mean things about the other side. None of these reasons make sense to me and I’ll keep trying to show, not tell.