February 2016

Tips from the Pros: How to Make Your Briefs Sparkle

By Jeremy Robinson

Casey Gerry Schenk Francavilla Blatt & Penfield LLP

Round up a group of lawyers and ask them whether they are good writers. Most will say “yes.” We don’t lack for self-confidence, after all. But, in my years of practice, I have seen innumerable examples of legal wordsmithy, and I remain doubtful. True, most lawyers are well-educated and fluent in legal jargon, but, amazingly enough, that does not translate to a compelling read.

There are several excellent resources on legal writing and I encourage both aspiring and seasoned brief writers to consult them. I am not going to discuss them here; rather, I will offer a few ideas I have picked up from practical experience. I hope they help you on the road to the Next Spectacular Brief.

Organize

The biggest defect I see in most briefs is a lack of clarity. Judges are busy. So, it is absolutely paramount we as writers are clear. We must tell the judge exactly what we want and why we are entitled to it.

I believe part of the problem is poor organization. I’m not talking about dividing the brief into fact and argument sections and so on; everyone does that. What I mean is the introduction and argument do not explain in ordinary terms why the writer should win. The writer’s thought process is not fully developed and organized.

You need to know how you are going to connect the facts and argument before you start writing. The first step is to come up with a good, well-considered position. Find a way to focus. Going for walks helps me.  

Once you have something, run it by your colleagues. See if you can explain it to a non-lawyer. For longer, more complicated briefs, create an outline. Then you are ready to start writing.

Summarize

The introduction is one of the most important parts of a brief. But many lawyers just pack the introduction with “Comes now the Defendants …” and other legal nonsense. There is no need for that. I want someone who reads no further than my introduction to still understand my position and why I am right. I also want to grab the reader a bit.

I like to write my introduction last. It seems counter-intuitive, but I think it helps. It forces me to distill my argument down to a few paragraphs. And, if I can’t do that, I know my argument is not as well-organized as it needs to be. So, I go back and fix the argument until I can summarize it fairly easily.

Then I try to add a few facts to make the introduction “pop.” Not hyperbole or histrionics, just facts. As trial lawyers always tell us (and social science confirms), people are drawn in by human stories. So humanize the brief a bit. Make the judge want to keep reading.

Use Images and Charts

Modern word processing software makes it easy to add pictures and graphics to briefs. Yet, I see very few lawyers doing it. Why? I think it can be tremendously helpful. Which do you think will be more effective, trying to describe the location of an intersection crash or providing a picture of the intersection?

The same holds true for charts and graphs. If, for example, you are trying to explain a complex arrangement of corporate holdings and subsidiaries, create a graphic. Most word processors have built-in capabilities for creating them.

Edit Mercilessly

Judges universally complain that legal briefs are too long. They are right. As lawyers, we want to make sure we include every conceivable argument in our filing. But, that doesn’t mean our briefs must read like 19th century Russian novels where every character is named Ivan.

When I edit, I look for two things: (1) Does this sentence read clearly, and (2) does this sentence advance my argument? Any sentences that do not get fixed or eliminated.

Editing is your chance to chop out all the legalese and throat-clearing that clog up amateur briefs. Your brief should not read like a pleading. Strike out phrases like “the subject incident.” We know which incident you mean. Call it “the crash” or “the lie” or whatever is fitting.

Here are a few other “pet peeves” you should strive to avoid:

  • Don’t use “and/or.” It is never necessary.
  • Don’t capitalize the party names. I’m not sure where this practice came from, but it just makes the brief harder to read.
  • Likewise, don’t overuse abstract terms like “defendant.” Make the parties real people, since they are.
  • Don’t spell out numbers then put the numeral in parentheses, e.g., “thirteen (13).” Just pick one.
  • Omit adverbs (mostly words ending in “ly”) when possible. Usually they are just unnecessary editorializing. The same holds true for hyperbolic adjectives. Don’t call something a “tragedy” or an “injustice” unless it really is. Even then, it is often better to let the facts speak for themselves.
  • Don’t take pot shots at the other side, even if they are deserved. If you are right and they are wrong, the judge will see it. Snarky language and sarcasm also rarely go over well (a problem I am particularly guilty of).
  • Don’t use headers that don’t explain your position. In other words, don’t just say “Summary Judgment should be denied,” say why.
  • Don’t spend several paragraphs laying out the facts of a reported case before letting the reader know why they are important. And if they aren’t important, leave them out.

Typography Matters, At Least a Little

Finally, one of my personal crusades — good typography. By typography I mean, in a general sense, how the brief looks. The emphasis should be on readability and professionalism. Research has shown it does make a difference, however slight. It won’t make up for bad writing or losing arguments, but it will make you look good and the judge will appreciate a readable brief. So avoid things like long sentences in all caps (even in headings), cramming the text to the very edge of the page margins, and littering the brief with confusing acronyms and abbreviations.

Court rules do limit your options as far as spacing and fonts go, but there is still leeway to experiment and improve. Consider purchasing a professionally-prepared font if you are a regular writer.

And most of all, enjoy! Being paid a lawyer’s salary to think and write is a genuine privilege.