A Brief Must be Pudding with a Theme

Winston Churchill reputedly would refer to flavorless food as a pudding without a theme. He employed the same critique occasionally to a disorderly piece of legislation.  In 1935, he criticized a proposed statute, called the India Bill, as a “gigantic quilt of jumbled crochet work.” To him, it had no “theme,” “pattern,” “conviction,” “simplicity,” or “courage.”  It was, in his view, “a monstrous monument of shams.”

A legal argument without a theme and the other deficient qualities Churchill scored is equally indigestible. It suggests that the advocate had no plan in attempting to persuade the court and little faith in the arguments mustered. A theme unites disparate aspects of the case into a single consistent narrative that enables the reader to understand and sympathize with the argument. A theme weaves together the facts, law, and sense of justice in the writing behind a single common idea to convey a strong and favorable reaction from those you seek to persuade. It allows you to demonstrate that your proposed rule of law is fairer, less complex, more consistent with precedent, or more workable. It therefore better fits the established norms, modern trends, or recent developments. Although a reading judge may not later remember specific details about the case, a consistent theme creates a lasting impression and enables even a fuzzy recollection of key elements to blaze a familiar-seeming path to your desired result and imbue the apt analogies you invoke to have irresistible force.

Judge Patricia Wald of the U.S. Court of Appeals for the District of Columbia Circuit once advised that brief writers should:

                        Visualize the whole before you begin. What overriding message is the document going to convey? What facts are essential to the argument? How does the argument                                take off from the facts? How do different arguments blend together? Better still, if it’s a brief, visualize the way the judge’s opinion should read if it goes your way. (Too                       many briefs read as if the paralegal summed up all conceivably relevant facts, and then the lawyer took over with the legal arguments, and never the twain doth meet.)

A theme also allows you to praise the insight or demonstrate the error in the lower court’s decision with proper respect. The theme should fit the case naturally, acknowledging its limits and not be the product of a hard sell. Those limits may involve the types of cases it fits or fact patterns that call for different considerations. Those acknowledgments provide welcome credibility to the judicial reader. By tying together loose ends and excluding problematic applications for separate treatment in a logical fashion, the argument will render the judicial enterprise easier and the argument more appealing.

A theme is compelling storytelling. For a divided court that takes markedly different  approaches to issues, it can make all the difference. Take, for example, statutory interpretation. Some judges adhere to the text and do not look beyond it. Others seek to divine congressional intent from legislative history. Yet others focus on practical issues to make legislation workable. Regardless of the judges’ approach, a theme creates an overarching means of fitting each of those forms of guidance into a consistent answer that can yield a favorable result. Do not leave your panel with a flavorless pudding.