This post is adapted from an article written for CEB by attorney Mary-Christine (“M.C.”) Sungaila.
Using basic storytelling principles from creative writing can inform and improve legal writing. In a recent blog post, we discussed building a brief like building a story, from the characters to the language. In this post, we focus more on drafting the brief, using five more techniques from creative writing.
- Grab Your Reader Early. Like the short story writer, a legal writer should answer the question “why should I care about these people?” relatively quickly. Legal writing should set the scene and introduce the parties early. It is important to describe why the judge should care and want to rule in your client’s favor. In an appeal, the brief should state whether the result below was unfair, whether the client is particularly sympathetic, and whether the case falls squarely within established precedent or, if existing case law dictates an adverse result, whether the facts demonstrate why the precedent should be limited or overturned.
- Be Open to Revising Your First Draft. In writing your first draft of a brief, you may have an approach and a story clearly in mind. Be open to revising it, however. A better story may emerge once you have written the first draft.
- Organize Arguments Carefully and Thematically. In an appellate brief, once individual legal arguments are written, the author should consider the most effective order in which to place these arguments. You may wish to put your strongest legal argument first. Or you may choose to place the arguments that give you the most complete relief (judgment in your client’s favor) first, followed by alternative arguments that provide less complete relief, such as a new trial or a reduction in a damages award.
- Be Efficient. Good fiction writing exhibits an economy of words and purpose. Each word and each sentence serves a role in the story, e.g., to flesh out a character or to move the action forward. Superfluous language should likewise be eliminated from legal briefs. Get to the point and reiterate that point in different ways throughout. Always keep the purpose of a particular section—and the overall persuasive goal—of the brief in mind and consistently work toward it.
- Edit Again and Again, and Again. In fiction and in law, first drafts are just the beginning. Self-editing is crucial. Make sure the persuasive purpose of the brief is clear throughout. Eliminate adverbs. For example, if the brief says the result should “clearly” be a certain way, that usually means the result in fact is far from clear—or the reader would not need to be told this. Instead, provide a better overall description of analogous case law and an explanation of why the result here should be favorable to the client. After self-editing, ask a colleague to edit the brief. An objective reader inevitably spots weaknesses in a brief’s narrative and can help improve it. Continue editing until the brief is as persuasive as possible.
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.
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