Write to Persuade, Write to Entertain

        As many readers likely heard, last year the renowned legal writing expert Brian Garner published the 180 page transcript of his interviews with all nine Supreme Court justices in the legal writing journal Scribes.  In a nuthsell, Mr. Garner's interviews explore various aspects about appellate advocacy that every lawyer should know before representing a client before the Court, or before any other appellate tribunal for that matter.  The justice's complaints are at once familiar - Justice Ginsburg: Lawyers somehow can’t give up the extra space so they fill the brief unnecessarily, not realizing that eye fatigue and even annoyance will be the response they get for writing an overlong brief - and at times reflect a common-sense, practical approach to brief writing that is both refreshing, and, well, surprising to hear from those who inhabit the seemingly rarefied, cloistered world of the Supreme Court.  Even a judge adjudicating the smallest controversies can appreciate Justice Roberts' statement that "[the facts must relate] a good story. Every lawsuit is a story. I don’t care if it’s about a dry contract interpretation; you’ve got two people who want to accomplish something, and they’re coming together — that’s a story. And you’ve got to tell a good story. Believe it or not, no matter how dry it is, something’s going on that got you to this point, and you want it to be a little bit of a page-turner, to have some sense of drama, some building up to the legal arguments."

        Just as the paperback fiction writer is writing to entertain the casual beach reader, the legal writer is writing to persuade a judge or a group of judges to reach a particular result.  In other words, every writer has an audience, and, here, some of the most learned judges who bear witness to some of the most impressive advocacy lament that, even today, they read far too many briefs that are heavy on long, turgid expositions of the law and light on brevity and human drama.  Read the transcripts.  Digest your audience's lessons. 

On Noise

“The most valuable of all talents is that of never using two words when one will do.”
― Thomas Jefferson

Thomas Jefferson would undoubtedly cringe at more than a few of the typical throat clearers seen in today's legal writing, to wit: It is respectfully submitted that plaintiff's reliance on A v. B is misplaced.

Revised: Defendant respectfully submits that plaintiff's reliance on A v. B is misplaced.

Revised again: Plaintiff's reliance on A v. B is misplaced.  He argues that A v. B stands for the principle...

Revised yet again:  Plaintiff erroneously relies on A v. B for the proposition that...

Legal writers at all skill levels employ the "respectfully submitted" phrase as a crutch.  The author may review the draft once for style and revise the sentence to the active voice, yet leave the "respectfully submit" crutch intact, as seen in the first revision above.  Trim the fat.  Cut all the useless phrases in your brief, collapse two sentences to one, and, where appropriate, reword all passive sentences to the active voice.  Lawyers complain they have neither the time nor the resources to indulge in such fine-tuning, as if an overburdened judge or law clerk does enjoy the luxury to read useless placeholders, sentence starters and throat clearers that in no way advance - but, in fact, detract from - your argument.  Chisel away the noise.  Make the brief sing.

Forms: The Appellate Advocate's Temptation

“Ideas are like rabbits. You get a couple and learn how to handle them, and pretty soon you have a dozen.”
― John Steinbeck

As a young attorney who was often overburdened with motions and briefs that had piled up on my desk, I loved forms. "One of my colleagues had responded to this argument," I thought.  "I'll just send out my standard email to my colleagues: Has anyone responded to the claim that....?"  Minutes later, and to my delight, I would receive several sample responses, taking pride in the fact that I slashed countless hours of research and original writing into a mere one to two hour writing project.  During very busy times, the routine even became familiar.  Copy.  Paste.  Edit.  File and serve.  Repeat.

For those appellate practitioners who practice in areas that have a high volume of recurring issues, you probably caved into the same temptation as well, copying and pasting like a robot all in service of the cliche "There's no sense in reinventing the wheel."  I regret to report, however, that he sample memorandum of law or brief your colleague wrote is not a substitute for original thought.  Whether you are a main street personal injury attorney or big firm litigator extraordinaire, you did not sink yourself into six figure debt so you could perform the mindless - and unfulfilling - task of shuffling paper around a desk.  You are a lawyer.  Stated differently, someone is paying you - and paying a premium - for you to think critically.

Take a moment before you click "send" for that sample response.  Read the brief and read it slowly.  Digest the facts and issues.  Understand the nuances to determine whether they are of any legal significance.  As a mentor once explained, "legal analysis is like peeling an onion.  You must sift through the layers in order to fully analyze the issue."  So, peel the onion and examine the many dimensions to the issue at hand.  You may find that an issue you thought was simple and settled is, in actuality, novel and highly complex.  Indeed, the response your colleague drafted may be wholly inadequate as a response to your adversary's claim.  You will then have no choice but to craft a sophisticated, original argument.  In other words, you will have no choice but to think and write like a lawyer.         

The Blind Advocate

"I am constantly amazed, during Supreme Court arguments, to hear an attorney virtually struck dumb by questions from the bench that anyone with knowledge of the case should have anticipated. It is as if the attorney has become so imbued with the spirit of his cause that he has totally blindsided himself to the legitimate concerns that someone else might have in adopting his position." -E. Barret Prettyman, Jr.

David Boies shared a similar sentiment during a lecture he delivered at my law school some six years ago. He remarked that one of the most challenging aspects of litigation is being both a zealous advocate while at the same time maintaining a ruthlessly honest, objective assessment of the strength of your case. I should have heeded such advice when appearing for oral argument on an appeal I handled early in my career.

The defendant claimed the trial court deprived him of his right to a fair trial by making some unkind remarks about his attorney's advocacy in front of the jury. I crafted what I still believe was a very strong argument in response: counsel goaded the court into making the now complained about comments as he was clearly attempting to engineer a mistrial for his client. Moreover, however improper the court's remarks, the mixed verdict reflected that the jury based its verdict on the evidence, and, therefore, no prejudice inured to defendant as a result of the court's comments.

So deeply I believed in the strength of this argument that I was blindsided by the court's first question and which I realized soon thereafter was the logical result of my position: how can an appellate tribunal sustain the defendant's conviction without also sanctioning the court's obviously improper remarks? Lesson: Let the brief sit after writing the first draft. Give your brain a rest. Then return a few days later with a red pen and comment on every single argument that your adversary or the court may find troubling. You will be grateful for taking this exercise when you will have ready answers for those questions directed toward the weakest aspects of your case.