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. We have a few general legal writing tips.
Legal Writing Tips: Write To This Court, 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 courtroom loss can really hurt. But when the case is over in the lower court, the litigant must look to the future, not the past. The next appellate court is not a venue for embarrassing or chastising the judges and lawyers. Appellate courts seek to manage and correct the interpretation and application of the law in the lower courts. Those courts are not very interested castigating their colleagues.
Your brief in the court above should argue that the lower court made a legal error. If the brief instead tries to point out that the judge below is a jerk and a moron, your appeal will certainly fail.
Legal Writing Tips: On The Other Hand, 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 look 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. The lawyer on the other side has training, experience and resources that the non-lawyer does not have. Her research will likely 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 use that, and let it 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.”