At Cockle Legal Briefs, we work with quite a few non-lawyers filing their own petitions in the U.S. Supreme Court. Occasionally our conversations with these pro se litigants move beyond the necessary formatting and content requirements for a Supreme Court brief, and into more basic questions of legal writing. Over time, we have come up with some general legal writing tips. I offer a couple of these pointers here—in no particular order—with more to come in later posts.
Legal Writing Tips: Write To The Court Above, Not The Court Below
Every case is emotional. Litigation is combat, and combat means casualties, leaving every combatant with an emotional stake in the outcome. And this unavoidable human response is even more poignant for pro se litigants. You must not only manage your very personal interests in the outcome of the litigation, but must also try to maintain a professional relationship with the attorneys and judges in the case.
A lower court loss can really sting. But when the case is over in the lower court, it is truly over. The next appellate court is not a venue for embarrassing or chastising the judges and lawyers involved at the lower level. Appellate courts seek to manage and occasionally correct the interpretation and application of the law. Those courts are not very interested in lambasting their legal colleagues.
Your brief in the court above should argue that the lower court made a legal error. But if the brief instead tries to point out that the judge below is a jerk and a moron, your appeal will surely fail.
Legal Writing Tips: But Do Not Try To Take Out All Of The Emotion
Following the tip above does not mean you should try to turn yourself into a legal writing robot. The first, most obvious reason is that you will probably fail to completely divorce yourself from your personal attachment to the case, and you might l
ook foolish in the attempt.
Another good reason to let some emotion into your writing is that real, uncontrived feelings might be the pro se litigant’s only true advantage in the case. The lawyer on the other side has training, experience and resources that the non-lawyer does not have. Her research will be more thorough, her brief more polished, and her argument more eloquent.
But she doesn’t have your authentic connection to the subject of the case. You should let that show through. Believe it or not, judges are people, and a careful, restrained—but genuine—reference to your emotional stake might just be the nudge that pushes a judge to try to find a way to make a legally-supportable decision in your favor.
Of course, if you are only relying on emotion, you will lose. You are filing in a court of law, not a support group. Even if you make the judge weep as he reads your brief, if you cannot offer him at least some legal structure to support your case, you have not done enough to help the judge decide in your favor.
You can find more great tips for writing a winning brief in our white paper, “How to Write a Winning Appellate Brief.”