One of the most notable film and literary portrayals of an attorney is Atticus Finch in To Kill a Mockingbird. Exhausted and worn, Atticus stands before the jury and delivers an impassioned plea for truth and justice. His words are so powerful and persuasive that even those familiar with the story hold out hope for his falsely accused client, Tom Robinson.
Finch is just a fictional character, but his tale has triggered many aspiring attorneys to use words as he did to stand athwart the course of wrong-doing and ignorance. These “Atticus Finch” moments are a familiar troupe in legal dramas today.
While effective oral communication is a useful skill for attorneys to have, there is one lesser-known skill that is even more important—the ability to write in a convincing manner, particularly when it comes to composing a legal brief. With so much idolizing of Atticus Finch and such a strong focus on verbal communication, many practitioners neglect the written word.
There are a number of reasons lawyers may experience weakness in writing—mainly a decreased focus on the skill in secondary and higher education and a digital culture that generally fails to promote in-depth and thoughtful written communication.
In my opinion, a large part of the blame lies with the law schools where students are inundated with poorly written cases surfeited with incomprehensible legalese. Compounding the problem, law professors typically don’t give feedback on writing style and often even skip over substance.
My first law school exam was in Legal Method & Writing. I was handed a blue book and expected to regurgitate several weeks of opinions, precedents, and nascent legal knowledge. I failed. On a second go-round, I somehow managed to throw enough ink on the page to pass. To this day, I have no recollection of what I wrote or of any feedback from my esteemed professor.
Become a better lawyer by becoming a better writer. Below are ten things to consider when writing a brief. Make your briefs not just thought-provoking, but also convincing. And obviously, kick-ass.
1. Know Your Audience
Briefs are more often scanned than read by busy judges. The last thing they or their overworked clerks want is to wade through a drawn-out and convoluted narrative.
A brief is not the place to let your inner-Shakespeare flow across the page. Your writing should be clear and concise—stick to the important facts of the case, the issue to be resolved, and relevant case law and/or statutes buttressing your position.
Be as brief as possible—no pun intended. Judges, like all people, are susceptible to boredom and distraction. I once saw an overworked judge purse her lips and say to counsel, “Your written argument seemed to take the long way around and I found it kind of hard to follow. In one paragraph or less, tell me what you’re trying to say.” Definitely not the way you want to start a hearing.
2. Organize and Outline
After you’ve gathered the contents of your brief, such as facts, case law, statutes, and so forth, think through what you want to say. Take the time to brainstorm and organize your thoughts. Throwing your ideas on a whiteboard may help you identify the points you want to make in your brief. If your outline moves naturally from opening point to conclusion, great. If it doesn’t, rework it until it does.
When creating your outline, remember these five easy steps:
- Establish the purpose of your brief
- List your main idea(s)
- Put your main ideas in an order that makes sense
- Flesh out your main points with content that supports each one
- Review and make adjustments as needed
3. Have a Strong Table of Contents (TOC)
Your (TOC) should be well-written, concise, and easy to understand. Include only what is necessary and nothing more. Use bold fonts where needed and take care to verify that each individual section matches the appropriate heading and page number. It’s easy to forget to include updated page numbers in the rush of a filing.
Check out other briefs filed in your court to get a flavor of well-written TOC. One excellent example I learned early on is from the landmark civil rights case, Brown v. Board of Education. Each heading is clear, referenced by page, and broken down into smaller sections as needed. You can see the image here.
4. Use the Preferred Format Style
Each court has a preferred formatting style. Some are fairly loose, while others can be downright nitpicky. Failure to follow a court’s format can result in delays and added expense.
Formatting requirements typically cover paper size, line spacing, margins, and fonts—which can be especially tricky. Most courts will use a 12-point Times New Roman, Arial, or Courier font, but the U.S. Supreme Court uses a Century family font.
Never assume that the formatting rules haven’t changed. Individual judges sometimes have their own preferences. Know your court’s and judge’s requirements before submitting your brief. I once made the mistake of not clarifying requirements before submitting a brief only to have it returned by a court clerk with a Post-it note attached encouraging me to “familiarize myself with this court’s preferred formatting requirements.”
To be safe, if you have any doubts—ask. And it also doesn’t hurt to snag a copy of a previously submitted brief.
5. Rely on Effective Headings
Effective headings are like freeway signs—they alert a reader to what is coming up in each section. It also helps you flip through the brief for a quick review of a particular topic. Again, judges are busy people, don’t make it difficult for them to find or refer to a particular passage in your brief.
6. Employ Informative Summaries
Summaries aren’t just for your main argument; they’re also handy for stressing important facts and evidence. They can give the necessary background to the reader.
If you’ve included an important but lengthy block-quote; don’t take the risk of it not being read. A succinct summary before or after the quote ensures it will be noticed. Trust me, the judge will like it.
7. Tone Down the Legalese
As a centuries-old, overly formal method of legal writing, legalese can be confusing and difficult to understand. I say, why use a five-dollar word when a one-dollar will do? Plain English beats the usual lawyer lexicon of “herein,” “hereinafter,” “heretofore,” “whereas,” and “aforementioned” every time.
One tip I’ve learned before filing a brief is to have a non-attorney (the client if possible) read it through. If they can easily follow the argument, understand my reasoning, and not be bored; it’s likely that the judge will too.
If you struggle with those odd-grammar rules, I recommend utilizing a good writing tool. You can find a number of useful tools online—many for free. Two of the more popular are Grammarly and BriefCatch.
8. Don’t Insult the Opposition
Never refer to the opposition in a negative manner. Keep your arguments factual and avoid unprofessional or personal attacks on opposing counsel, even if you feel they deserve it. If they get insulting, threatening, or petty in their correspondence to you (it happens), just attach that nasty communique to your brief as an exhibit; the judge can notice their unprofessional behavior as they read your filing.
Citing laws and statutes is challenging. Learn your court’s preferred citation style and follow it. This applies to page numbering as well—some courts use roman numerals, while others prefer regular numbers. Always review each citation for uniformity. A judge will usually forgive minor errors, but switching back and forth between styles is a definite no-no—it makes for some sloppy and unprofessional-looking work
10. Review and Review Again
No matter how well you write, always review briefs several times before filing. I worked with a senior attorney who was a great writer of briefs and motions. He would do the first draft, then wait a day or two to review it with an eye to cutting words, sentences, and even whole paragraphs. He deleted anything that failed to offer direct support for his main argument.
He would also give the brief to a colleague for review and make appropriate changes. His briefs were so well-written that judges often commented on his succinct and thorough style
Collaboration is invaluable when drafting a brief. Document management software is an efficient and easy way to streamline revisions and team collaboration on briefs and other documents. After a brief is uploaded to a project, team members can review and revise as needed.
Another essential part of reviewing the brief is to make certain that the authorities you cite are applicable and current. It’s embarrassing when opposing counsel points out that your argument relies on case law or statutes that have been overturned or rescinded.
Writing is thinking on the page. As President Ronald Reagan once said, “How do I know what I think until I see what I write?” This is especially important for lawyers—though most of us will never argue in the courtroom like Atticus Finch, almost all will draft a brief on behalf of a client.
A sloppily-written brief doesn’t do you or your client any favors. Conversely, a well-written one is always to your advantage. It shows the judge that you respect the court and know what you’re doing. Document writing and document management is a large part of an attorney’s job.
As an attorney, the vast majority of your legal work will be spent drafting documents. Doing them correctly is crucial. A concise, thorough, and persuasive brief shows the court and opposing counsel that you’ve done your preparation, know what you’re talking about, and are ready to kick-ass.