This post is adapted from an article written for CEB by attorney Mary-Christine (“M.C.”) Sungaila.
Good writing—whatever its form—is good storytelling. Although legal briefs have a different purpose than fiction or creative nonfiction, basic storytelling principles from creative writing can inform and improve legal writing. Here are the first five of ten techniques from creative writing that can greatly improve your briefs.
- Never Forget You Are First and Foremost Telling a Story. The brief that wins is the one that tells the most compelling story, within the limits of the facts and the law. Never forget that the story is king. This should prevent a common mistake: focusing too much on the procedural history in a case (unless that itself is the story). It is never too soon to start telling your story, even in the complaint.
- Sometimes Show; Sometimes Tell. Good fiction writers blend “showing” and “telling.” In other words, they both show the action (as though a video camera were recording a scene) and tell what the characters are thinking. Good legal writing should also contain a mix of “showing” and “telling.” It is important to choose the right vehicle for your particular purpose, however. A brief writer might choose, for example, to “show” what prior courts have said about an issue by quoting from case law extensively, in block paragraphs. “Showing” in this manner, however, is probably not the best choice for a persuasive brief. Extensive quoting tends to bore the reader, or worse, cause the judge to skip over or skim this language. A better choice is to “tell” the court about the same precedent by either (1) summarizing the rule of law and citing to a series of cases with parenthetical quotations or explanations of those decisions, or (2) setting out a more narrative-based discussion of the case, with some shorter quotations.
- Be Vivid and Specific. Character is often in the details. It is always better to paint a specific picture of those details rather than to generalize about them. The more a legal brief contains specific details about the client, the facts, and legal analysis of similar cases, the more the case comes alive. Set the scene, using factual details from the record, rather than broadly generalizing about the character of the parties or witnesses. In addition to bringing the case alive, this makes your factual descriptions less argumentative and more credible and persuasive because it will lead the court to draw conclusions without being hit too hard over the head with your view of the case.
- Tell the Truth, Not Just the Facts. In essay writing, the following maxim prevails: “Write the truth, not the facts.” This means that an essay’s focus is the writer’s own truth of what an event meant to him or her, not the factual events themselves. The truth is not only more interesting, but it provides a gateway to a story. In a legal brief, the facts must be told, of course, but you should also consider what the dispute you are litigating is really about. Tell the court about it—whether it is the other side’s real motivation for bringing the suit, or the real-world impact of an adverse decision for your client.
- For There to Be a Story, Something Needs to Be at Stake; Be Clear About What That Is. A story cannot consist of simply a list of events; something must be at stake, i.e., there must be a sense of consequence or a character wanting something. Legal briefs can tell a story by identifying what is at stake and describing the potential consequence of a particular decision by the court. You can describe how a ruling against your client would lead to an unjust result (for example, by depriving your client of the family farm) or require overturning long-established, sound case law (which would in turn threaten an entire industry that had previously relied on the law for its business transactions). Be sure to identify these consequences clearly at the outset, or as soon as it makes sense to do so.
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 anytime On Demand.
Stay turned for five more tips from creative writing later this week.
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