How Lawyers Misunderstand Their Audience When Writing for Judges

• Pages: 21-22
• Date: 01 April 2025
• Published date: 01 April 2025
• Author: Hon. Carl A. Aveni
• Subject Matter: Civil Law

ne of the recurring pieces of advice that I heard

senior partners give to junior associates in civil

rms over the years was that it was worth l-

ing early motions, even if the rigorous standards

of review made it unlikely for those early lings

to prevail. The advantage, they would explain, was the oppor-

tunity to “educate” the judge about the client’s version of the

dispute. Of course, the motion had to be colorable and in good

faith—it had to have *some* chance of success. But against that

low hurdle, the incremental cost of ling a “thirty-percenter”

was more than offset by giving the court an early window into

what really happened. It was an investment that would pay

substantial dividends later, when the court is thinking about

the case, perhaps in terms of a discovery dispute or perhaps

at summary judgment.

This advice draws from the primacy effect in behavioral

psychology—an oft-studied cognitive bias, referring to our

collectively hard-wired tendency to better remember infor-

mation presented rst or earlier in a series. It is advice that I

received myself as a young associate. I’ve seen it used when

How Lawyers Misunderstand Their

Audience When Writing for Judges

By Hon. Carl A. Aveni, Litigation News Asso ciate Editor

© Getty Image s

explaining litigation costs to a client, both before and after

a “thirty-percenter” was denied. I’ve seen it suggested by in-

house counsel, when urging outside trial counsel to be proac-

tive early on. I *may* have even passed it along myself, when

training younger lawyers somewhere along the way. But, from

the vantage point of the bench, I’m here to tell you that it fun-

damentally misunderstands how judges process information

and make decisions.

Know Your Audience

As a trial judge on a busy court of general jurisdiction in a

populous county, I have just shy of 700 cases on my docket

in any given month. Roughly half of those cases are felonies

on the criminal caseload. The rest are a civil hodgepodge of

complex commercial and business disputes, wrongful death

actions, professional malpractice suits, foreclosures, personal

injury cases, real property ghts, product liability class actions,

and the like.

Whatever sway the primacy effect holds elsewhere in life,

or even in my personal decision-making, those incremental

SPRING 20 25 • VOL. 50 NO. 3

21 | ABA LITIGATION SECTIO N

VIEW FROM THE BENCH

Published in Litigation News Volu me 50, Number 3, Sprin g 2025. © 2025 by t he American Bar A ssociation. Re produced with per mission. All righ ts reserved. Thi s information or an y portion there of may not be copied or

disseminated in an y form or by any means or s tored in an electro nic database or re trieval system wi thout the express w ritten consen t of the American B ar Associatio n.