In most law school seminars, the instruction of legal writing usually gets broken down into technical details. However, legal writing—just like every other form of writing—is more art than science. You must learn how to tell a story, appeal to an audience, and—after you’ve gotten the mechanics of analysis down—trust your instincts.
Over almost a decade of practice as a civil business litigator, I’ve written briefs in almost every condition imaginable, from penning overnight pocket briefs between trial days to laboring over every word and phrase in appellate briefs for weeks on end.
While every good lawyer tries very hard to “be concise” and “thoroughly edit,” such oft-repeated principles fail for their ambitious generality. Here are eight ideas I’ve picked up along the way to guide you through the search for your own persuasive style.
1. Your introduction is your elevator pitch.
Attorneys often spend the vast majority of their efforts crafting complex arguments for the body of their briefs, leaving little time and energy for their introductions. This results in vacant outlines or formulaic filler at the top of their briefs. Unfortunately, such hurried efforts invite clerks and judges to glance right past introductions, wasting the most valuable opportunities to make the most impact.
Rather than viewing introductions as a way to “introduce” the issues and elements, you should distill your most persuasive arguments in them. In fact, introductions need not cover every argument or detail every nuance. Depending on the issues at play, they can simply frame how the reader should think about the main issues or highlight your most important evidence or case citations.
If your introduction is your elevator pitch, its first sentence should be your brief’s tagline, going straight to the heart of the matter. If nothing else, it should trigger the most basic reason the court should grant or deny whatever relief has been requested—to prevent injury or prejudice, to uphold the value of due process, because the evidence is persuasive, or because the case law is on point.
Consider your introduction as the court’s takeaway, forwarding the ideas that will most likely influence the court’s ultimate decision.
2. Headings are road maps.
Whenever I receive an opposing party’s brief, the first thing I do after I read the introduction is to scan the brief for headings, checking the landscape for any formidable or unexpected arguments.
Of course, when I actually read the brief in its entirety, I often find arguments tucked away in hidden corners of the brief, completely unrelated to the headings. This is bad practice because it obscures potentially effective arguments and betrays flawed reasoning.
While writing headings at the outset is helpful in creating an outline for your brief, always remember to re-evaluate them throughout the drafting process, and particularly at the end. This is a great self-check for comprehensiveness and logical consistency.
3. Use adverbs sparingly.
The impulse is understandable: You want the court to pay special attention to what you have to say. Something is not just true, it is clearly true. Opposing counsel’s conduct is not just improper, it is thoroughly improper.
These things may all be true, but think of how Demi Moore, JAG officer, responds after the court overrules her objection in the movie A Few Good Men: “Sir, the defense strenuously objects…” After the court again dismisses her repeated objection, Moore’s surly co-counsel comments: “‘I strenuously object!’ Is that how it works?’ ‘Objection!’ ‘Overruled.’ ‘No, no, no, no, I strenuously object.’ ‘Oh, well, if you strenuously object, then I should take some time to reconsider.’”
Moore’s co-counsel is a jerk. But he’s right. In other kinds of writing, adverbs can imbue sentences with shades of meaning, expressing variation and nuance with great effect. In a legal brief, however, they can often appear strained or even desperate—constituting hollow ploys to get the court’s attention or even crutches in place of superior argument.
Often they do the opposite of what they were intended to do, allowing the meaning of the adverb to get lost in a jumble of overused descriptors that judges and clerks have trained their eyes to ignore. If something is clearly true, then it may be worthwhile to point out to the court that, in this instance, “the truth is clear,” and then to explain how.
By changing an adverb into an adjective, you make a choice to shift the focus onto a single descriptive and thus set a stage upon which you can present your factual or legal argument. If the point isn’t worth the time or effort it takes to explain, then it was probably never worth including it as an adverb in the first place.
4. Why would you ask a rhetorical question?
“If you prick us do we not bleed? If you tickle us, do we not laugh? If you poison us, do we not die?” says Shylock in The Merchant of Venice.
Rhetorical questions can be beautiful, evocative devices in oratory and the theater. They can appeal to the audience to consider the speaker’s point of view or invite the listener to follow the speaker into whatever adventure awaits. They do not, however, work well in legal briefs.
Why is that? Rhetorical questions are transparently manipulative. They literally frame the question and thus allow the speaker to provide the answer. This works well with audiences that have submitted themselves to being inspired by a leader, seduced by an actress, or instructed by a teacher. But judges are not usually interested in being similarly enthralled.
Writing a legal brief, you must always be attuned to your very specific role in relation to the intended reader. While you must demonstrate knowledge and authority, you must do so with the awareness that the ultimate authority is your audience, the court, which will critically evaluate your assertions. Therefore, it’s never a good idea to ap-pear manipulative, or for that matter, anything but forthright.
5. If you do what I ask, then it will be great.
If you were to do what the other guy asks, then it would be awful. Where rhetorical questions can often seem contrived, the selection of tenses or moods can nudge a reader’s inclinations with effective subtlety. In seeking to persuade the court to adopt your desired position, you should use the future tense to suggest its sunny inevitability.
In contrast, when presenting the opposition’s unwanted result, you should use the subjunctive mood, impressing upon the reader its counter-factual nature. For example, if you follow my advice, your briefs will be effective. But if you were to refrain from doing so, a dystopian nightmare would result.
While the strategic deployment of tenses and moods can have almost imperceptible effects, it’s always worth-while to pay attention to how they affect the tone of your brief and to make sure they’re used consistently throughout.
6. The fewer the words, the more meaning each conveys.
A lot of legal writing experts decry lengthy briefs. I disagree. I think complicated issues often need room for explanation, and dismissing any opportunity to do so would be a mistake. A better way to think about the length of your briefs is to remember that there’s only a discrete amount of information or content that can be conveyed in a single piece of writing.
Imagine a rhubarb pie: The more slices of pie, the smaller each piece, and the less rhubarb each contains. A brief is a pie of information, and instead of rhubarb, it’s stuffed with content. The more words you use, the less meaning each of your words conveys. The fewer the words or ideas, the more of an impression each one makes upon the reader.
When a writer is concise, the reader is grateful for being spared the chore of reading unnecessary words and naturally pays closer attention.Thoughtful editing is much harder to practice than to preach. But cutting your words without mercy is something you’ll never regret. Your brief won’t lose meaning; in fact, each word will gain a little more with every heartless red line you make.
7. Examples and analogies are worth a thousand words.
Nothing better serves concision than well conceived analogizes.
8. Consider yourself a curator of information.
On my first day of law school, my legal writing teacher told us that to become good legal writers, we should throw away everything we ever learned about writing, especially creative writing. He was wrong.
Much of legal brief writing is about telling a kind of story, putting together information in strategic ways to formulate a narrative the reader will accept.
The main difference between Stephen King and your run-of-the-mill lawyer is that the stories the latter must often tell involve mountains of documentary evidence, complicated accounting, and technical contractual provisions—all woven into esoteric legal principles governing the lawsuit. However, both must always keep in mind what drives their written work.It is easy to get lost in lengthy legal citations and voluminous facts.
But you must always keep in mind your twofold goal: First, to achieve your objective on any given motion, but second and most importantly, to press your overall case in every motion you make or defend. That narrative should be the singular and consistent vein running through every filing in the course of a litigation.
Whenever you begin to write a brief, you should reflect on the characters involved, their relationships and motivations, and the story you ultimately want to convey at trial. While not every—or perhaps even none—of the main issues in your case might make it into a particular brief, they should impact the manner in which you juxtapose your facts and lay out your arguments.
Phu Nguyen is senior counsel in Dykema’s Los Angeles office and the co-author of “The Second Chair.”
VOL. 44, NO. 4