Writing briefs — indeed, writing generally — is an area in which most attorneys can use help or at least a refresher. In a recent case (.pdf), some attorneys learned this the hard way when the judge called their grammatical errors ”so egregious and obvious that an average fourth grader would have avoided most of them.” Those attorneys could have used the following brief-writing principles excerpted from an article written for CEB by Presiding Justice Arthur Gilbert of the Second District Court of Appeal, Division 6.
1. Be wary of your opponent’s briefs. Many are excellent but some are deficient. Approach them the way you would a sleeping tiger or a calm river—with caution. The gently flowing water may have treacherous undercurrents. The cases cited are not always pertinent to the issues, and the issues are not always fully developed. Therefore, you should always check your opponent’s research.
2. In your brief, state the following succinctly:
- The nature of the case. “Bay O. Wolfe appeals the denial of his motion for summary judgment.” “Grendel Schwartz appeals his conviction of mayhem.”
- The issues or questions to be decided.
- What the ruling should be; you are not writing a mystery novel, so you should immediately tell the reader that the butler did it. In some cases you may want to state the desired ruling in the very first sentence. For example: “We urge the court to rule that a shareholder may be sued on a contract signed by a corporate officer.”
- Facts—pertinent ones only, please. To insure that you have stated them with scrupulous care and objectivity, check and recheck the record and transcript. Make sure that the facts in one section of the transcript do not contradict facts in another. Be careful not to mislead the court.
- Argument: Give reasons for the ruling you desire. Avoid repetition, and keep the issues distinct in your mind, and in the reader’s mind. Support your conclusion with cases, statutes, and above all, logic. Make absolutely certain that each case you cite stands for what you say it does.
- Conclusion: Tell the court what you want it to do.
3. In your rough draft, highlight your weaknesses and then try to write a response to the weak points. Sometimes weak points cannot be analyzed thoroughly unless an issue is written both ways. After reading your two versions, you will often know how to best argue a weak point.
4. Make the brief interesting and persuasive. It must be free from obscurity or ambiguity. “Plaintiff rented the store.” Was plaintiff the lessor or the lessee?
5. Write with the reader in mind. Most readers know as much about the case as you did before you began to work on it. Therefore, do not assume the reader knows anything about it. Explain to the reader what the case is about. Although rudimentary points should not be labored, they may be necessary as stepping stones to later points.
Even if you forget the rules, please try not to forget this general principle: Unlike the poet who writes to understand, lawyers write to be understood. And stay tuned in the next weeks for parts 2 and 3 of these writing tips.
CEB’s books offer helpful advice on drafting all types of court briefs, including complaints and answers (see Civil Procedure Before Trial) and appellate briefs (see Civil Appellate Practice). For an entertaining and informative program, check out Daniel U. Smith’s seminar on persuasive legal writing, available On Demand. You might also go to my earlier blog posts on creative writing techniques for your legal briefs.
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