Drafting a Concise, Impactful Litigation Pleading

Brian Stryker Weinstein is a partner and litigator with Davis Polk in New York who has taken on many benchmark cases in state and federal court. Among Brian Stryker Weinstein’s areas of interest are the qualities that set successful trial attorneys apart at every stage of complex proceedings.

One critical element of any litigation is the pleading, which controls aspects such as what the issues are, who is involved, and what defenses will be raised. It also defines the level of discovery permissible and available remedies.

Trial judges are often inundated with documents to look over and sign, so the key to a well-drafted pleading is brevity and accuracy. Instead of burying the critical issue, bring it to the fore and strip away unnecessary legalese. Focus on imparting information in a way that will make the court inclined to rule in one’s favor while giving it reasons to make such a decision.

As a general rule, it is best to provide a comprehensive summary of the pleading’s substance within two pages. Present the issue at hand clearly and provide the court with insight into how counsel believes the matter can be best resolved. The rest of the document should frame the relevant legal issue within the context of background facts.

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How Marbury v. Madison Made the Supreme Court an “Equal Partner”

Brian Stryker Weinstein is a New York attorney who delivers counsel in a variety of litigation cases. Experienced in diverse aspects of litigation, Brian Stryker Weinstein has a personal interest in landmark cases that have helped define the US Supreme Court’s role.

One such case, Marbury v. Madison (1803), reflected the tumultuous politics of the time. Before Thomas Jefferson came into office, the outgoing Federalist “lame-duck” Congress of John Adams created an additional 16 circuit judgeships, as well as other new judgeships of unspecified number. This was part of an effort to block Jefferson’s Republican Party from enacting its own legislative agenda.

A total of 42 justices were authorized by Adams in the weeks leading up Jefferson’s inauguration. However, William Marbury, one of the outgoing president’s last appointed justices, did not have his formal appointment delivered in time. His judgeship was subsequently withheld by new Secretary of State James Madison. This set up a lawsuit by Marbury against Madison for failing to deliver his commission, as the documents had already been signed and sealed.

Chief Justice John Marshall ultimately decided that Marbury did possess the right to the commission, as a political decision had been made by the outgoing president before his term expired. He further characterized Madison’s refusal to deliver that commission (under Jefferson’s orders) as a “plain violation of that right.” In presenting a solution, Marshall greatly expanded the Supreme Court’s powers, as he gave it the right to overturn Congressional acts. He placed the Supreme Court central in a system of checks and balances and gave it power to declare acts by other branches of government unconstitutional. It was at this moment that the Supreme Court emerged as an equal partner within the executive and legislative branches.

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The Supreme Court’s Tradition of a “Judicial Handshake”

 Based in New York, Brian Stryker Weinstein maintains a law practice focused on high-profile litigation cases. An area of personal knowledge for Brian Stryker Weinstein is the US Supreme Court and its history and traditions.

Dating back to the late 19th century and Chief Justice Melville W. Fuller, one persistent tradition in the courtroom is the “judicial handshake.” This involves shaking hands with each of the other eight justices when assembling to sit on the bench each day and when about to start private conferences at which decisions are discussed. This practice was instituted as a daily reminder of “harmony of purpose,” even in cases where the justices’ individual interpretations of the law differed.

Allowing for differences of opinion is a central part of a well-functioning democracy and enshrined in the actual practices of the Supreme Court. For practical reasons, as the need to minimize social interactions took hold during the COVID-19 pandemic, justices temporarily paused this tradition in March 2020. However, the tradition has since been reinstated and continues to this day.

How Does the Media Affect Fair Trials?

 While the public deserves basic information about high-profile criminal cases, media outlets often provide extensive coverage of crimes, which can present problems for prosecutors, defendants, and defense attorneys.

The United States federal justice system relies on the principle of fair trials. Under the Sixth Amendment of the US Constitution Bill of Rights, every criminal in federal court has the right to a speedy trial with an impartial jury. While the Constitution does not define this concept, it has evolved through tradition and case law to mean that jurors do not enter the case with a preconceived bias against the defendant.

What role does media coverage play in the selection of an impartial jury? A prospective juror who has read or heard extensively about the case will likely have formed an opinion, consciously or unconsciously. The more media coverage a case has received, the more trouble attorneys may have in selecting a jury without prejudice or bias.

Attorneys for the defense and prosecution aim to weed out impartial jurors during voir dire, which is the process of selecting jurors from a larger pool. To identify and eliminate biased jurors, attorneys ask numerous questions about their ability to follow a judge’s instructions, their personal beliefs, and their exposure to pre-trial publicity.

According to research, media exposure does affect jurors’ opinions, although they are typically unaware of their biases. Capital cases attract more extensive and emotional media coverage than other cases, which makes jury selection more challenging. Media coverage also affects judges. A Stanford University study found that elected judges give harsher sentences to defendants in cases that receive significant media coverage compared to similar cases with less coverage.

Along with an impartial jury, defendants have a right to due process of law, which outlines a formal procedure of investigation and trial. This broad right extends to many legal issues and aims to prevent a government from unilaterally removing an individual’s rights. According to the Supreme Court, due process in criminal trials might be compromised if an action “fatally inflicts the trial.” An example is if an accused individual appears in court in prison clothing, as this can have an impact on jurors’ perception of innocence.

Media coverage can impact due process in many ways. While public interest trials have always been open to the public, this previously meant people could attend trials in person. Now, television broadcasts and Internet streaming mean that millions of people can watch a public trial in real-time.

The presence of cameras in a courtroom may influence witnesses to alter their testimony. For example, if the witness to a gang-related crime knew that other gang members could watch the testimony online, they might change their testimony for fear of retaliation. Similarly, jurors might fear public retribution for making an unpopular decision.

Supreme Court Justices have long differed in their opinions about cameras in the courtroom. Some believe it encourages transparency and accountability, while others are concerned that trials will become salacious entertainment.

The courts have several tools at their disposal to limit the influence of the media. A defense attorney can ask for a change of venue to move the trial from the jurisdiction where the crime took place, or the judge might postpone trial proceedings until publicity dies down.