Appellate Advocacy Blog

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

Wednesday, October 19, 2022

Fact statements, part II

Following up on my last post, a few more pointers on writing compelling statements of fact. 

4. Prime the pump. There are only two ways to become a great writer: (1) read good writing; (2) try to echo it until your own voice emerges. On the first, it's helpful to read good legal writing, but it's more helpful to read just good writing period. Pull out some Shakespeare, some Milton, some modern author whose prose you find compelling (I'm a big Joseph Conrad fan myself). Figure out what makes it compelling--how are the sentences structured? How did they craft a particular turn of phrase? What punctuation helped you speed up or slow down as you read? How did they draw attention to something and how did they brush something aside? And don't forget some poetry. Poets often convey a great deal of meaning with very few words. That is the work of a great appellate attorney--making things as simple as possible, but not simpler; finding simplicity on the other side of complexity (as Justice Holmes said he longed for). I know that law students read a lot, and it can be exhausting to think about picking up a book or magazine after setting down your case book. But if you enjoy the author, it's no chore. You won't win any literary awards for your legal writing, but you just may keep your reader's attention for longer and improve your odds of persuading them by being more interesting. 

For example, there's a literary technique called a zeugma in which a writer applies a modifier to two or more objects in different ways--often, to some literally and others metaphorically. For example, in To Kill a Mockingbird, Harper Lee wrote about the character Boo Radley: "Boo was our neighbor. He gave us two soap dolls, a broken watch and chain, a pair of good-luck pennies, and our lives." A colleague once echoed this technique in a very effective fact statement about a murder: "At closing time on February 15, 1994, someone robbed the Payless Shoe Source Store in West Jordan, Utah.  He took $849.73, a pair of size 10 men’s “Attack” athletic shoes with teal trim, a pair of size 10½ black “Honcho” boots with distinctive green stitching, and the life of the only employee in the store. . . ." The zeugma and the fine detail of inconsequential things really draws the reader's attention to the true loss. 

5. Slang and contractions. This one divides a lot of lawyers and judges--usually (but not always) by age. Some think that putting a contraction or bit of slang into a brief or opinion causes the bowels of the earth to shake and the majesty of the law to crumble. Others write briefs and opinions so laden with informality that the reader is left to wonder whether she is reading something of import at all.  I tend to fall between those extremes. The point of legal writing is to persuade. Persuasion often requires careful emphasis. By sprinkling your brief with calculated  informality, it can draw the reader's attention in a persuasive way. It's like cinnamon--a little bit goes a long way, but none robs the dish of flavor. Now, it must be the right case and at the right time. But I think there's a place for it, if done sparingly. And if you're uncomfortable doing it in a brief, it can at least be helpful in oral argument, which tends to be a bit looser than written advocacy. Whatever you do, do it on purpose, and you'll likely be more effective.   

6. Genre. Sometimes you are gifted with a case in which you can echo literature or media to good effect. By favorite example of this was a dissent from a denial of certiorari from Chief Justice Roberts, in which he echoed film noir: "North Philly, May 4, 2001. Officer Sean Devlin, Narcotics Strike force, was working a morning shift. Undercover surveillance. The neighborhood? Tough as a three-dollar steak. Devlin knew. Five years on the beat, nine months with the Strike Force, He’d made fifteen, twenty drug busts in the neighborhood. Devlin spotted him: a lone man on the corner. Another approached. Quick exchange of words. Cash handed over; small objects handed back. Each man then quickly on his own way. Devlin knew the guy wasn't buying bus tokens. He radioed a description and Officer Stein picked up the buyer. Sure enough: three bags of crack in the guy's pocket. Head downtown and book him. Just another day at the office.” Pennsylvania v. Dunlap (2008) cert. denial dissent.

If you are familiar with the genre, you can hear the grizzled, world-weary voiceover and see the gumshoe detective walking the mean streets of North Philly (notice: not Philadelphia). The tone doesn't keep up throughout the opinion, but it lasts long enough to make a point: the officer had probable cause to arrest. If this were made into a movie and you watched it, you wouldn't have the slightest doubt about what just went down. This opinion generated a lot of debate, but for me it was quite effective (and entertaining).

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Making things as straightforward as possible without being too straightforward is the job of a good appellate lawyer (as Justice Holmes said he longed for). I understand that after putting down your case book, the thought of picking up a book or magazine might be tiresome for law students. It's not a hassle, however, if you like the writer. No one is going to give you a prize for your legal writing, but if you can make it fascinating, you have a better chance of getting your point through.

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