At Cockle Legal Briefs, we work with quite a few non-lawyers who are writing a legal brief for the U.S. Supreme Court. Occasionally our conversations with pro se customers 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 have previously posted tips, here and here, and today I offer other tips, with more to come in later posts.
Writing A Legal Brief: Review Samples Of Other Briefs
Writing a legal brief is difficult. The best appellate lawyers learned the basics in law school, and continue to hone their style throughout their careers. Non-lawyers who have not spent their adult lives writing legal documents face an especially daunting task trying to draft a brief that will effectively convey their arguments.
We have found one extremely useful tool that can really help the non-lawyer in writing a legal brief: samples of well-written briefs that have previously been filed in the Supreme Court. Pro se filers can review the work of more experienced brief writers to quickly understand the composition, style, and tone of a Supreme Court legal brief. Reviewing samples can help you see the kind of information the Court wants to see in each of the required brief sections. You can see how experienced lawyers write for persuasion, and how it all comes together in a finished document.
We offer a petition sample here. Another excellent resource is SCOTUSblog, a site that links to the briefs filed in merits cases—that is to say, all the cases where the petition successfully convinced the Court to grant cert. And, of course, you can simply search for Supreme Court briefs to see many more samples.
Writing A Legal Brief: Everything In Its Place
The Supreme Court Rules specifically describe nine different required sections for a petition. Sup. Ct. Rule 14.1. Each section serves a distinct purpose, and the justices and their clerks will look to each section to learn the information that should be provided there.
But often we receive a draft from a non-lawyer writing a legal brief who has not fully understood the content that should go in each section. Inexperience and eagerness seem to lead many pro se filers to use every section of the brief to explain the reasons for the petition. For example, the table of authorities might contain not just a list of the legal authorities referenced in the brief, but a statement describing how each authority lends weight to the petitioner’s argument. Or maybe the statement of the case rehashes each of the errors that occurred below, without telling the reader the basic factual and procedural evolution of the case.
I recommend that the non-lawyer first, follow the advice of the hint above, and look through several petition samples written by experienced filers. There you can see the kind of information that should go in each section. Then, when actually drafting the petition, it’s good to think about each section as a separate document. Start with the boring, formulaic sections first. And every time you feel yourself wanting to dig into the meat of the controversy—wait. Then write the statement of the case. Think of it as a story about your case, told by a mostly—though not completely—impartial observer. You can use the statement of the case to begin hinting at the mistakes that occurred below, but don’t let yourself get to deep into the argument. Then, finally, write your reasons for granting section. All of the other sections have set you up to finally dive into the heart of your appeal. This is where you really start to try to persuade the Court to grant the petition.
You can find more great tips for writing a winning brief in our white paper, “How to Write a Winning Appellate Brief.”