Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Saturday, July 10, 2021

When Writing a Brief, Think Like a Judge

Excellent writers know how to write for their audience, not for themselves.

Imagine that you are a justice on the United States Supreme Court and responsible for deciding whether the word liberty under the Fourteenth Amendment’s Due Process Clause encompasses a right to assisted suicide. In addition to the parties’ briefs, you intend to read over twenty amicus briefs.

What criteria would you use to identify the most persuasive appellate briefs?

The best lawyers know the answer. It’s all about the quality of your writing. And the best writers place themselves in the shoes of the reader.

Below are five writing tips to maximize the persuasive value of your brief.

1.    Use plain language

[Too many lawyers believe that] it is essential to legal English that one write as pompously as possible, using words and phrases that have long disappeared from normal English discourse.”

Justice Antonin Scalia

When writing a brief, forget about the words you encountered on the SAT and resist the temptation to sound intelligent by using ‘fancy’ and esoteric words, or legalese. Doing so undermines your credibility and persuasiveness. Write like you are a human being. After all, if you had to read over twenty briefs, would you want to read briefs that required you to consult a dictionary to understand what the advocate was saying? Of course not.

Consider the following example:

As discussed infra, it is axiomatic that the defendant’s words had a deleterious impact upon the plaintiff’s sterling reputation, which as demonstrated herein, was compromised by the invidious invectives hurled at the plaintiff, the effects of which were exacerbated when the defendant repeated these deleterious statements in the local newspaper. Such statements are ipso facto defamatory and, as shown infra, render the plaintiff’s claim meritorious as a matter of fact and law, thus justifying the damages sought herein.

Huh? What?

If you were a justice, how would you react to reading this nonsense?

Consider the next example:

The defendant’s statements were defamatory as a matter of law. They were published to a third party. They subjected the plaintiff to scorn and ridicule in the community. They harmed irreparably plaintiff’s reputation. They were made with an intentional disregard for the truth or falsity of the statements. Put simply, the statements represent a textbook case of defamation.

It should be obvious that the second example, although far from perfect, is better than the first.

Be sure to write in a simple and direct style that eliminates ‘fancy,’ esoteric, and unnecessary words, and legalese.

2.    Be concise

Most people don't like others who talk too much. Judges are no different. 

If you had to read over twenty briefs in a specific case, wouldn’t you favor briefs that were concise, clear, and to the point? Of course.

Thus, in your brief, get to the point immediately. Identify the controlling legal issue. Tell the court what you want (the remedy you seek). Tell the court why you should win (using the relevant facts and legal authority). Omit unnecessary facts and law. Address only relevant counterarguments. Avoid unnecessary repetition and excess words.

Think about it: if you had just read five briefs and then turned to the sixth and final brief that you intended to read that day, wouldn't you want that brief to be concise and wouldn't you want the writer to get to the point quickly? Of course.

3.    Capture the court’s attention

Most people dislike boring movies. They dislike boring books. They dislike boring people. And they dislike boring briefs.

Your writing should capture the court’s attention. It should tell a story. It should be entertaining. Consider the following example:

This case is about whether the defendant’s statements defamed the plaintiff. For the reasons that follow, the answer is yes. The defendant’s words were harmful to the plaintiff and published in a widely circulated newspaper. The defendant said these harmful things with little regard for the plaintiff’s reputation. These statements harmed the plaintiff’s reputation in the community and continue to harm the plaintiff’s reputation. As a result, the plaintiff has been damaged. The court should rule for the plaintiff.

Yeah, whatever.

That paragraph would probably put most judges to sleep. It almost put me to sleep writing it. Now consider the following example:

On December 8, 2018, the plaintiff’s life changed forever. After purchasing the New Jersey Times, the plaintiff reacted in horror when seeing that the defendant had written an article calling the plaintiff a “horrible human being” who had “sexually assaulted his co-workers and stolen money from his clients.” In the next few days, the plaintiff lost twenty-five percent of his clients. He received threatening emails, including one that said, “I hope you die.” Simply put, the defendant’s statements traumatized the plaintiff, caused irreparable reputational and economic harm, and nearly ruined the plaintiff’s life. The statements are defamatory as a matter of law -- and common sense.

Again, it should be obvious why the second example is better.

An example of a persuasive – and entertaining – brief is Chief Justice John Roberts’s brief in Alaska v. Environmental Protection Agency.[1] All law students should read this brief.

4.    Confront the weaknesses in your case and explain why they do not affect the outcome you seek

No one likes a person who is dishonest or evasive.

Likewise, judges do not like advocates who avoid confronting the weaknesses in their arguments. The best advocates acknowledge and confront those weaknesses. They address unfavorable facts and legal authority.  And they explain why those weaknesses do not affect the outcome that they seek.

Advocates who omit unfavorable facts or authority lose their credibility with the court and compromise the persuasiveness of their argument. Don’t be one of those advocates.

5.    Don’t make ‘red flag’ mistakes

When you're writing a brief, don’t make rookie mistakes. If you do, your credibility – and the persuasiveness of your brief – will be irreparably damaged. Some of these mistakes include:

  • Spelling and grammatical errors
  • Long sentences (i.e., over twenty-five words)
  • Inappropriate language (e.g., “The defendant is, simply put, a jerk and the lower court was clueless and ignorant in failing to realize that.”)
  • Extremely long paragraphs (a paragraph should never occupy an entire page)
  • Unnecessary emphasis (e.g., avoid bold and italics, and never use an exclamation point at the end of a sentence)
  • Demeaning the lower court or your adversary
  • Failing to follow the local court rules
  • Including too many block quotes
  • Citing overruled authority
  • Failing to cite unfavorable authority
  • Misrepresenting the record
  • Citing legal authority incorrectly
  • Requesting a remedy that the court has no power to grant
  • Telling the court what it must do, rather than respectfully requesting what it should do

Don’t make these mistakes. If you do, you will likely lose your case – and harm your reputation.

***

Ultimately, when writing a brief, use your common sense. Judges want to know what you want and why you should win, and they want you to explain it simply, concisely, and persuasively.

Simply put, great writers make great advocates.

 

[1] See Brief for Petitioner, Alaska v. Environmental Protection Agency, available at: 02-658.mer.pet.pdf (findlawimages.com)

https://lawprofessors.typepad.com/appellate_advocacy/2021/07/when-writing-a-brief-think-like-a-judge.html

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