In my last post, I wrote about a cool resource I found that discusses the art of legal writing. Edited by Philip Allen Lacovara, senior counsel at Mayer Brown in New York, Effective Brief Writing, Chapter 7 of Federal Appellate Practice (The Bureau of National Affairs, Inc., 2008), is a comprehensive and useful resource for anyone wanting a little help writing a legal brief.
In this post—and in two that will follow—I offer some more notes from the Chapter, as well as some thoughts of my own.
Writing A Legal Brief: Tell A Story
The Chapter’s authors assert that the Statement of the Case can often tip the judge or panel into favoring the Argument that follows. And I can see their point: the best lawyers I know are gifted storytellers, and the Statement of the Case provides a natural venue to spin a compelling tale.
First, remember that the point is to persuade. And you are much more likely to persuade an engaged audience, than a reader who is simply trying to stay awake through the Conclusion.
But it goes deeper than that: a story is like a Universe, and the storyteller is its god. If you can draw the reader in to engage with your version of the case, you wield a subtle but important power. You can emphasize the elements that will favor your argument, and mitigate the contrary facts. You can use style and rhythm to draw the reader’s attention to those parts of the case that align with your position, and you can coolly assess the factors that do not. You can paint a picture of the case that will comfortably accommodate the result you want.
But, do not get so carried away with crafting a good yarn that you abandon your duty of candor. First, your obligation to alert the Court to all relevant facts, including unfavorable facts, is an absolutely bedrock ethical tenant. But also, a failure of candor is just plain dumb. You are not likely to get away with it—remember, your opponent has a brief to file—and once caught, you will never again be able to regain the confidence of the court.
So, tell a good story. And let the story subtly favor your position. But the story must never cause a fully informed reader to suspect your integrity.
Writing A Legal Brief: Maintain an Organized Structure
The authors remind us that there is no single, right method to organize an appellate brief (beyond, of course, the rule-mandated elements and sequence of the brief). But they do insist that some organizational principle must be followed. And that makes sense; not only will an organized structure allow the writer to effectively deliver the other virtues of good legal writing, but a brief that demonstrates a clean architecture suggests to the reader that the author understands the case, and that the argument must be a rational extension of that understanding.
The very nature of an appellate brief can undermine your organizational principle. For example, the Statement of the Case typically carries the burden of laying out the relevant factual elements. But the Argument—where you will attempt to link those facts to a legal framework—might necessarily require at least some repetition of the facts. The authors tell us to find different ways to express the repetitive elements, perhaps with a more general summary.
Of course, outlining is an essential practice to help you begin your draft with a sense of how the elements should cohesively knit together. But the authors also recommend using a “reverse outline.” After writing the first draft, break it back down into an outline form to see if you have avoided unnecessary repetition and organizational gaps.
Regarding repetition, I have found that it can be too easy to underestimate the reader’s ability to retain a once-stated element throughout the brief. I think this comes from the reality that drafting takes so much longer than reading. If I write about Fact A in my Statement, then go on to write a thousand or more words before getting into my Argument, I might have the mistaken sense that Fact A needs to be fully rehashed for the reader as a lead-in to the Argument. But the reader might actually be thinking, “Why are we getting into this again? Did I miss something?” This kind of organizational error—which has now become an error of tone and persuasion—is best resolved by leaving enough time to set the draft down for a day or two, then re-reading straight through with a fresh mind, similar to the way that your audience will read the brief.
The Chapter has much more to offer, so look for my later posts to learn more about writing a legal brief.