I have written many legal opinions and briefs over the years. In fact, when I worked for the federal government I drafted more than 1,500 judicial opinions for federal administrative law judges. In private practice I now focus exclusively on persuasive writing and handle the vast majority of my firm’s brief writing. Persuasive writing can be really fun but is also difficult. Some lawyers have the knack for oral advocacy and others make great brief writers. Either way, here are some tips to make your persuasive brief writing better.
1. Always write LESS than the other side, always!
The first rule I always follow is to make sure I write LESS than the other side, no matter what. If the other side submits a brief that is 35 pages long, you can bet that mine will be 34 or less. Why less? First, it proves you are better able to articulate your argument in fewer words, something that judges love. Second, it shows that your brief doesn’t contain unnecessary “fluff.” Third, I am a true believer that a winning argument doesn’t need to prove that it is a “winner.” Usually, the winning argument will stand out on its own. In my practice exclusively representing plaintiffs in employment matters I have found that defense lawyers are particularly bad about brevity. I attribute some of this to the fact that defense lawyers are paid hourly, making every page matter. Other times I find that it is an inability to let the other side have the last word. Either way, you are better served by writing less. The judge will appreciate it and you will be forced to simplify your argument.
2. Long string cites are not your friend.
Every time the other side has a string cite that is half a page long (or longer) I cringe. You have to know the judge feels the same way. There are other ways to articulate that your position is widely accepted by courts than with a long, boring string cite. Better yet, string cite the strongest three cases that support your position and leave it at that. You are wasting space (see number 1) and boring the reader. Another option is to cite a case that includes a long string cite in itself for the proposition you are forwarding (and use the notation “collecting cases”). This gives you the benefit of a long string cite without using one.
3. Get footnotes right.
I am guilty of this one, “bigly.” Only certain information is appropriate for footnotes. What information? Those tidbits that are sort of related but not really (and that you think the court still needs to know). If you need more than two or so sentences, it is probably something that belongs in the body and not in a footnote. The idea is that footnotes are disruptive to the reader and if something is important, it doesn’t belong in a footnote and should be in the body. The general rule I follow is that it is more likely than not that what I think should go in a footnote should actually go in the body instead. Scrutinize each footnote and reconsider its placement.
4. Don’t be boring.
This is a hard one for lawyers because we are, as a group, boring people. Sorry friends. Legal writing is about as exciting as watching paint dry but there are things you can do to make your brief more interesting. First, get rid of all of the legalese. No one wants to read it and it makes you look antiquated. Second, jump right in and get your hands dirty. Start with your strongest argument first and go for the jugular. No need to waste time. Try and spin your facts in a manner that tells a story. If you can’t tell a story to a judge you are in real big trouble with a jury.
5. Don’t stretch case holdings to stand for propositions they do not.
This annoys me and happens all of the time. I am always very careful to make sure when I cite a case that it stands for the proposition I am citing it for. However, it is not uncommon to see legal briefs written by really great lawyers where they, at best, overstate case holdings. In a brief I read from an opposing attorney on one particular occasion the attorney cited a “holding” from the United States Supreme Court and asked that the district court apply this “holding” in my case. After I researched the opinion, I realized that the other side was not citing the “holding” but, rather, a concurring opinion that made the same ultimate finding but for a wholly different reason. Don’t try to mold a holding to say something it does not. Just keep looking for a better case that is more on point.
6. Try brief writing away from the office.
This one is not possible for everyone but something you should consider. I understand that some people can only write at the office away from the distractions of home. The office, however, can be just as distracting as home. I have found that writing during the normal workday at the office is next to impossible for me. The phone is constantly ringing, emails are popping in, and people have pressing questions that must be answered. Instead, my quiet time is at home in the evenings when I can put in some earplugs and write away. Consider taking a day away from the office to find a quiet space and focus on your writing. A change in scenery can be just the recipe for your writing blues.
7. Don’t delegate brief writing to associates.
It is glaringly obvious when a partner has delegated brief writing to an associate. Instead, the person who is most involved with the case should be the person writing the brief. If you want an associate to help with your brief writing, keep him/her intimately involved with the case from day one. They need to be at the depositions, hearings, and copied in on all correspondence on the case. The best briefs (at the district court level) come from a firm grounding in the facts and discovery produced in the case.