Legal language was first born as an oral culture. Arguments, contracts, and judicial decisions — all the words that weave the practice of law, existed first in the voice and only later, as a derivative, in writing. When writing came along, it was only as the spoken word’s kid brother, struggling to keep up with its older, stronger sibling.
The centuries since then have seen the kid brother has usurp the throne: now what counts is what’s in writing. It started with a slow creep with the printing press, and concludes now in a culture where more and more cases hinge on a written motion or answer. Sure, attorneys still need verbal rhetorical skills, but increasingly, the spoken word is used in courts just to answer questions that arise in the written briefs.
(It’s a shame pop culture hasn’t caught up with the trend: instead of that zinger of a Matlock Moment during cross examination, legal dramas should show the Hollywood star in the blue light of her computer, finally finishing that really well-worded paragraph of a legal brief. Bam!)
But wade through a few dense pages of legalese and static cliches, and you’ll think most attorneys care more about picking out the right shirt in the morning than writing a good motion or memo. A poll of 666 state and federal judges, which underscored the weight judges put on written arguments, noted “overall, the judges’ relative emphasis on written argument contrasts with surveys of practicing lawyers, who perceive legal writing to be of minor importance.”
I’ll give you the bad news first: most attorneys are riddled with bad writing habits — habits that die hard. But the good news is that if you’re able to weed out those habits, you’ll easily shine brighter than the opposition.
So we’ve combed the advice of some of the law’s best writers, and compiled our own list.
Seven Best Practices to Write a Brief Worth Reading
1. Tell a Story
Judges are highly analytic beings, but they’re still human. And the most basic way that humans communicate is through stories.
Every brief gives you the chance to tell two stories. The first is the details of what happened with these particular plaintiffs and defendants, stripped down to its most powerful lines, but with the telling details that will lodge it in the judge’s mind. This story should be vibrant, and put it in a light that’s favorable to your client.
The second story is the legal story. This is typically the realm of rigid, copy-and-paste cardboard quotations, as though we think the judge is actually some kind of computer, wherein you can input a case citation and receive some logical output. It’s a shame to waste this chance to influence the judge, which is why the most successful legal brief writers pay close attention to the quality of their prose in this section, carrying the reader along the strong flow of their argument.
For the sake of clarity, many legal writers recommend the ‘IRAC’ structure: Issue – Rule – Analysis – Conclusion. You state the issue, put forward the governing legal rule in a few sentences or a few paragraphs, depending on its complexity; write a paragraph or so analyzing how this rule responds specifically to your case; and finish it off in a conclusion calling for a specific action.
But a formula does not need to mean dry, rigid writing. The structure can instead free you to write clear, compelling prose while knowing that you’re including all the relevant aspects, in an order that your readers will easily follow.
(Note: to tell a story well, you need to know it well. Take some time with both your client and the documents you’ve already gathered about the case. Know your case law all the way through, including any findings that weaken your case. Any case you’re citing had better be fully Shephardized. But all of this is better left to a post on good researching techniques.)
And what’s the ‘once upon a time’ and ‘happily ever after’ of this story? Your call to action. At the beginning and end of your brief, it should be impossible for a reader not to know what you’re asking for.
2. Be Brief
They’re called briefs, not at-lengths.
In a tongue-in-cheek article on “How to Lose an Appeal,” Judge Kozinski notes:
First, you want to tell the judges right up front that you have a rotten case. The best way to do this is to write a fat brief. [. . .] [L]et the judges know you don’t have an argument capable of being presented in a simple, direct, persuasive fashion. Keep in mind that simple arguments are winning arguments; convoluted arguments are sleeping pills on paper.
Nothing will make your brief more readable than simply keeping it brief. Spare, clear sentences will serve you best — especially when you’re dealing with a complex legal issue. Brevity is difficult work. Philosopher Blaise Pascal famously wrote the apology: “If I had more time, I would have written a shorter letter.”
Once you have drafted a brief, go through and remove any arguments you don’t need. Although many attorneys think their best bet is to load every possible argument against their opponent into a brief, judges reiterate again and again that they only want to see your best ones.
It can be devastating to axe an entire argument, when you’ve fallen a little bit in love with your own logic. But remember the advice Stephen King gave to aspiring writers, useful for both briefs and thrillers: “Kill your darlings, kill your darlings, even when it breaks your egocentric little scribbler’s heart, kill your darlings.”
When you’ve dumped all but your most compelling arguments, read through and remove any paragraph you can, then any sentence you can, then any word you can. Look out for moments you’re gilding the lily or purpling your prose.
The much-beloved writing style guide written by William Strunk and E.B. Wright (The Elements of Style) can inform us here:
“A sentence should contain no unnecessary words; a paragraph no unnecessary sentences, for the same reason that a drawing should have no unnecessary lines and a machine no unnecessary parts. This requires not that the writer make all his sentences short, or that he avoid all detail and treat his subjects only in outline, but that every word tell.”
What are the worst offenders of ‘un-telling’ words? White and Strunk give a list of some of their least favorite (all of which you’ve likely written in a brief before), and showed how they can be improved:
- the question as to whether ? whether
- there is no doubt but that ? doubtless
- used for [x] purposes (e.g. used for fuel purposes) ? used for fuel
- he is a man who ? he
- in a [x] manner (e.g. in a hasty manner) ? hastily
- this is a subject which ? this subject
- his story is a strange one ? his story is strange
One particularly egregious phrase is ‘the fact that,’ which can almost always be removed:
- owing to the fact that ? since
- in spite of the fact that ? though
- call your attention to the fact that ? remind you
- I was unaware of the fact that ? I was unaware that
- the fact that he had not succeeded ? his failure
- the fact that I had arrived ? my arrival
Another place to look for trimming out excess words: sentences that begin with ‘it’ or ‘there.’ Often you can wind up with a stronger sentence if you weed out these words. For instance: ‘There are four cases which refute this finding’ is weaker than ‘Four cases refute this finding.’
Trim out the exuberant overgrowths in the prose of your briefs, and judges will thank you for it.
3. Do Better Than Legalese
This rule couples nicely with the previous one.
Brendan Kenny, writing for Lawyerist, noted that if a legal writer were put in charge of the opening text for Star Wars it might run a bit like this:
AN INITIAL WISH
Whereas, it is a point in time of civil war, rebel spaceships did strike from a hidden military enclosure, and it transpired that they won their first (1) victory against the evil Galactic Empire (“EGE”).
I could tell you that Legalese and, in particular, Legal Stock Phrases (hereafter ‘LSP’), create, cause, and result in readerly boredom and the obfuscation of comprehension. Or I could say: it’s bad writing. You’re not convincing anyone that you’re smart. Cut it out.
Judge Kozinski writes that in order to lose on your legal motion,
“winning arguments should not only be buried, they should also be written so as to be totally unintelligible. Use convoluted sentences; leave out the verb, the subject, or both. Avoid periods like the plague. Be generous with legal jargon and use plenty of Latin. And don’t forget the acronyms in bureaucratese.”
To make this last point, he quotes a “little gem” from a recent brief: “LBE’s complaint more specifically alleges that NRB failed to make an appropriate determination of RTP and TIP conformity to SIP.” Kozinski notes: “Even if there was a winning argument buried in the midst of that gobbledygoop, it was DOA.”
Unfortunately, these bad habits might be inherent in the act of writing itself. Despite the Gutenbergian innovativeness of moving law to a written culture, cultures founded on writing can also be deeply conservative. While oral languages evolve over time, writing can get stuck. As legal historian Peter Tiersma puts it:
“With authoritative written opinions, [. . .] judges have felt themselves bound by decisions made generations or even centuries ago. In citing those opinions, lawyers and judges often repeat — and thus keep on life support — ancient verbiage that should long since have died out.”
Legalese is mind-numbing. Though some attorneys feel an intense attachment to the language as ‘more precise,’ the truth is that it’s almost always just a lazy cliché.
Legal writer Jenna Ebersole has compiled some of the most annoying of these clichés. She quotes one legal writing expert asking “Why are assertions always ‘bald’ and allegations always ‘specious’? And what’s the point of accusing your opponent of making a ‘self-serving’ argument? Who else would it serve?”
Some other doozies:
- ‘Needless to say’ (or variants such as ‘it is axiomatic,’ ‘clearly,’ and ‘indisputably’)
- Redundant groupings like ‘free and clear’ or ‘created, caused, and resulted in.’
- ‘Said’ to refer to ‘previously-mentioned’
Replace legal cliches with plain English and you’re certain to keep your reader’s attention for longer. This is particularly the case with the beginning and ending of motions — key points where your point could really impact a reader, but which we usually relegate to stock phrases. It’s some kind of legal ceremony, like a prayer beginning and ending church. Or maybe it’s just a lawyerly throat-clearing. Regardless: it wastes space that could be dedicated to telling the story (see #1, above).
Do all your motions begin with “Now comes blah blah blah and files this its Opposition to Defendant’s Motion . . .”? Do they all end with “For the foregoing reasons, Plaintiff respectfully requests that this Court grant their Motion in its entirety”?
The beginning and ending of a piece of writing are the places where the punchiest bits need to go, but instead we hand that space over to throw-away sentences. Obviously that’s what the Plaintiff so respectfully requests: that’s why a motion was written. You may as well erase the whole thing and make it one sentence shorter.
Eradicating legalese means creating beginnings that spark interest and endings that motivate judges to do what you want them to do.
4. Stay Civil
The Sixth District Court of Appeals in Ohio recently wrote:
“There are good reasons not to call an opponent’s argument ‘ridiculous,’ which is what State Farm calls Barbara Bennett’s principle argument here. The reasons include civility; the near-certainty that overstatement will only push the reader away (especially when, as here, the hyperbole begins on page one of the brief); and that, even where the record supports an extreme modifier, ‘the better practice is usually to lay out the facts and let the court reach its own conclusions.’”
Have you been lambasting your opponent’s claims as “ridiculous and obscene hogwash”? You may want to settle for “false.”
Judge Kozinski says anyone wanting to lose their appeal should:
“Pick a fight with opposing counsel. Go ahead, call him a slime. Accuse him of lying through his teeth. The key thing is to let the court know that [. . .] what is really going on here is a fight between the forces of truth, justice, purity and goodness–namely you–and Beelzebub, your opponent.”
Part of civility also includes conceding when you’re in the wrong. Canadian Justice Joseph W. Quinn, in a long rant of his gripes with attorneys, almost seems to get misty-eyed when he considers those attorneys who can admit when the opposition is correct:
“You probably have no idea of the sense of relief that overcomes a judge when a counsel candidly concedes an issue or agrees that a particular authority is unfavourable to his or her case. More importantly, the judge is likely to trust the balance of that counsel’s argument.”
Instead of biting down harder in a bull-dog refusal to surrender, see what happens when your motion or answer can allow for being wrong on a certain point. You might find that you win more of the other points.
5. Structure Your Brief for Skimming
Increasingly, judges will read your briefs from a screen. This isn’t good news, notes Robert DuBose, the attorney who wrote the book Legal Writing for the Rewired Brain: Persuading Readers in a Paperless World. We read differently when we’re looking at a screen — and usually that means we read with less attention. Even the most studious of us are more liable to skim, skip sections, and get distracted by other incoming information.
So what does it matter if you’ve crafted a perfect argument, if the judge is just going to read bits here and there, and stop every few paragraphs to read a new email or check her stock portfolio? You simply have to put your perfect argument in the most skim-friendly structure possible.
I’ve called a brief a ‘story,’ but there’s one big difference: a brief should always put its strongest points earlier. Don’t leave any big twist for the last page. Right at the beginning, the reader should be confronted with the principle questions, their answers, and the reasons for those answers. Your high school English teacher called it a thesis statement, and at the time you probably complained that such a thing would ruin every movie you’ve seen or book you’ve read (imagine if Sixth Sense began with an explanation of who was, in fact, already dead). But turns out that in the age of skimming, there’s a damn good reason for it.
When you write your legal thriller, you can leave your readers biting their nails in suspense. Until then, load your conclusions as close as possible to the top of page 1.
The rule of putting the best up front expands further: each paragraph should begin with a strong topic sentence, announcing what the paragraph will show, with good transitions to clarify how it relates to the paragraphs above and below it. Throughout, be explicit about the architecture of the brief, so readers can dive into the middle and still orient themselves.
I’m certain your beautiful arguments deserve a judge’s full and ardent attention. But you ain’t getting it. Write accordingly.
6. Passive Voice Is to be Avoided
‘Passive voice’ happens when the subject of a sentence — the person or thing that does something — is shuffled to the end of the sentence, or removed completely. Instead of “I made mistakes,” we get “Mistakes were made by me,” — or, worse yet, “Mistakes were made.”
Since you can get away with avoiding a subject for the action, passive voice has been a favorite ploy of politicians. But it reduces clarity, numbs the reader’s mind, requires more words, and can at times sound pretty shifty. Keep your sentences active!
Finally, once you’ve written your draft, read it with a critical eye. If possible, read it out loud. Vocalizing the words slows you down enough to help you find the little missing words or mistakes. It also helps your ear pick up awkward phrasing. Note each time you stumble: that’s probably a phrasing that needs to be made more fluid. Note each time your mind wanders: that’s probably a paragraph that needs to be made more engaging.
How finicky do you need to be about mistakes? Unfortunately, my answer is very. Notice how you’re using ‘its’ and ‘it’s,’ ‘affect’ and ‘effect,’ as well as the order of your citations and whether they match your jurisdiction’s rules.
You may find it a waste of time, and rightfully feel that a judge should respond to the merits of your argument, not your ability to follow tedious little rules. But even if the judge agreed with you on that, this isn’t about a person’s conscious decision. We are all affected by something called ‘the halo effect,’ which is a mental bias where positive feelings about one aspect improve feelings in other (and vice versa). Having good grammar will carry the halo effect of improving the judge’s perception of your argument, while every mess-up on their/they’re/there will harden judicial opinion against you
And some judges are very explicit about the requirement of perfect correctness. Judge Alex Kozinski, who sits on the U.S. Court of Appeals for the Ninth Circuit, writes that a violation in something as innocuous as font size “tells the judges that the lawyer is the type of sleazeball who is willing to cheat on a small procedural rule and therefore probably will lie about the record to forget to cite controlling authority.”