Wednesday, December 15, 2010
In December, many Legal Writing Professors are completing their grading obligations and starting to prepare to teach persuasive writing in the coming semester. Often the major writing assignment for the spring will be the brief. If you fit this category, you might want to consider assigning “Effective Brief Writing Despite High Volume Practice: Ten Misconceptions that Result in Bad Briefs,” by Sarah Ricks and Jane Istvan, 38 University of Toledo Law Review 1113 (2007). Here are the opening paragraphs:
THERE is an art to writing effective briefs, and each brief is different. But
many ineffective briefs contain the same mistakes, regardless of the brief’s
subject matter or the brief’s intended judicial audience. One recent survey
revealed that more than 93% of the responding practicing attorneys and judges
(both state and federal) believed that the briefs and memoranda they saw were
“marred by basic writing problems,” including a lack of focus (76.1%), failure to
develop an overall theme or theory of the case (71.4%), and failure to be
persuasive (66.4%).Another recent survey of 355 federal judges found that
“judges are critical of lawyers’ inability to use relevant, controlling authority to
The demands of a high volume law practice contribute to these drafting errors.
A heavy caseload allows little time for the brief writer to achieve the critical
distance from the document necessary to edit and revise effectively.
In addition, many attorneys have misconceptions about the role of a judge that
lead to basic drafting errors. Because judges want the result of a case to turn on
the merits, rather than on which party hired the better lawyer, they sometimes
reach out in cases where the briefs are poorly organized and opaque to
independently divine the applicable law and record facts. However, it is not the
judge’s job to sift through the advocate’s possible arguments to determine which
argument is strongest or to figure out how the law applies to the facts of the case.
Judges will not always have the time, the inclination, or the patience to figure out
what a disorganized brief’s arguments are or should have been.
In spite of the demands of a high volume law practice, lawyers can avoid
committing many common brief-writing errors by making a significant
attitudinal shift during the writing process. Lawyers should try to put themselves
in the place of their intended readers—the busy judge and the often
inexperienced law clerk. The ten most common ways to write a bad brief that the
authors have identified are all rooted in a failure to recognize that, like lawyers,
judges also have a high volume practice. And, unlike many lawyers who
specialize in one area, often judges are generalists who regularly confront widely
differing legal subjects. Judges need lawyers to explain to them clearly and
concisely what the applicable law is and how it applies specifically to the facts of
a particular case. When a judge who has spent all day trying a contract case sits
down to consider the merits of a free speech case at 4:30 p.m. that afternoon, he
needs help in recalling the relevant legal doctrines in free speech cases and
applying them to the facts of the pending case. The following explanation of
recurring brief writing misconceptions and errors can assist lawyers in assessing
the effectiveness of a brief from the perspective of the intended reader. This
article can help lawyers avoid ten of the most common ways to write a bad brief.