McElhaney on Litigation
Dirty Dozen: 12 Ways to Write a Really Bad Brief
Posted Jun 1, 2011 1:50 AM CDT
By Jim McElhaney
It was one of those great brainstorming sessions that you can never plan but that sometimes just happen. I was talking with Chris Lutz, a partner in the litigation department at Steptoe and Johnson in Washington, D.C., about legal writing, and the discussion settled on bad briefs.
How many ways are there to write a bad brief? Not theoretical possibilities or occasional oddities, but the kind of ordinary sins that even good lawyers commit every day. For every example that one of us gave, the other came up with a number of ways in which lawyers have taken that basic mistake and developed it into an art form of ineffectiveness.
The whole conversation went so fast that I can’t tell you who was responsible for which ideas. So if there is something you really like in our list of ways to write a bad brief, credit Chris; and if there is something you find annoying, blame me.
Make it a “long,” not a brief. There are lots of ways to make a brief too long: too many points, too many citations, too many quotations, too many words.
But what many judges look for is too many pages. Some judges delight in reading only up to the page limit they’ve imposed by local rule and then stopping. At least one appellate judge actually tears off the offending extra pages so he’ll be unable to read any further, if for some reason he actually finds the brief interesting.
Modern word processing helped rule-dodgers—for a while. With variable line spacing, scalable font sizes, adjustable letter spacing and creative margin measurements, some prolix lawyers were able to squeeze 5 pounds of words into a 4-pound brief.
But the same technology that created the illusion of complying with a page limit also created the means for getting caught. A number of courts have developed pretty sophisticated rules limiting length, spacing and margin size—and don’t hesitate to enforce them.
So don’t run your brief through the space compressor. A judge who knows you cheat on technical things will wonder about the honesty of everything else you do and say.
Throw issues against the wall. Too many issues make a bad brief no matter how many—or how few—words it has.
Of course, there are lawyers who figure they should throw everything they can against the wall and see what sticks. The results are almost always dismal. A brief that raises too many issues lacks focus and direction.
So forget law school. A brief is not a final examination. No one gives you extra points for spotting every possible legal question and discussing it. Even a legal gem that could point the way to the law of the future can get lost when it’s buried in doctrinal quiddities.
Flunk the giggle test. Seriously pressing a point that doesn’t pass the giggle test is deadly because it undermines your credibility. Sure, the law sometimes creates fictions to provide escape valves from legal doctrines that seem too harsh. But that’s different from arguing wild impracticalities or ignoring a body of useful, well-established law.
Commit purposeful errors. Everyone makes mistakes. When you do, take the necessary steps to correct them at once. But mistakes are nothing compared to making an apparently deliberate misstatement of a case or rule.
Judges don’t always call lawyers on what they think may be purposeful misstatements because intent is always hard to prove. But judges talk with each other—their club is a small one. Which is why you want to earn the reputation for being scrupulously accurate.
Make unreasonable arguments. The advocacy system is supposed to work when each side makes its strongest arguments. But “strongest” does not mean loudest, longest or most one-sided. Making the best argument you can means being reasonable, logical, fair. Concede the obvious. Not every issue has two good sides to it.
Be bombastic. Exaggerated words go hand in hand with unreasonable arguments. Traditional legalisms are bad enough—they qualify as a way to write a bad brief all on their own. But we somehow save our most annoying words for trying to state marginal points in the most positive language we can think of.
Here are examples of the kinds of words and phrases you should cross out on the first revision of any brief: manifestly, clearly, fatal, clear beyond peradventure, logic that is fatally flawed, egregious, contumacious, mere gossamer, must necessarily fail, totally inapposite.
If you can’t be reasonable, at least make an effort to sound reasonable.
Let Mongo loose. Lambasting the trial judge, the other lawyer, the Supreme Court, Congress, the president, the governor or the state legislature is rarely necessary or even helpful in writing a brief. Even if your readers secretly agree with you, they will still disapprove of using a brief to let fly at your favorite targets.
And lawyers have come up with lots of ways to attack other people or institutions. The bombastic approach is obvious, and it hardly ever gets points for style.
Some lawyers are likely to be snide or sarcastic. If that’s a tone that tempts you, remember this saying: Sarcasm is the last weapon of the defeated wit.
Phony deference and insincere compliments are just a breath away from full sarcasm: “In a veritable tour de force that compassed nearly 30 pages of a 40-page brief, esteemed counsel for the petitioner forcefully argued that compensatory damages are inherently unconstitutional.” Or: “The learned judge in the honorable court below focused considerable legal acumen on the question of mutuality of remedies, an issue unfortunately not presented by the facts in this case.”
Why do we write this stuff?
Because Mongo—the inner beast that dwells in every lawyer—has taken an argument or an adverse ruling personally, and he is convinced that the pen actually is capable of inflicting a mortal wound.
Forget it. Send Mongo to his corner. Get to the point. Argue the case, not your feelings.
Lay on the legalese. Aiming for a tone of formality and respect, we almost always go too far and instead create a forest of awkward verbiage.
Interestingly, a lot of legalese has nothing to do with the law but is simply pretentious and difficult to follow. The terms prior and subsequent do not improve on before and after. With respect to is a remote way of suggesting one thing is relevant to another without saying how, and talking about obfuscation does not clear up anything.
Real legalisms—even simple words like plaintiff, defendant, petitioner, respondent, cross-complainant and other procedural terms—also cast a cloud over your writing. They are especially confusing when you use them to identify people or explain how the case arose because they force the reader to think of individuals in their procedural settings at the same time they are trying to sort out the facts and understand your arguments.
Once you’ve identified the players with their legal labels, use their real names from then on.
Load up the citations. Lots of briefs contain lists of authorities that are two or three pages long. When you leaf through the text, you see a daunting bramble bush of quotations and case references on every page. What it says is: “Heavy reading ahead. There is nothing clear about this case. It has a lot of difficult questions that could obviously go either way.”
Two ways of citing too many cases are particularly annoying.
One is to give endless strings of case citations with almost no information about them. Stop it. You’re supposed to be an advocate, not a database.
Another habit to kick is citing authority for everything you say. Only first-year law students need to prove that contracts can be enforced or that a battery is a tort.
Every citation says, “Here is a key authority on an important point.” If that isn’t true, get out your blue pencil.
Quote like crazy. Some briefs are wall-to-wall quotations, decorated with long, underlined passages with the inevitable “emphasis added” sprinkled everywhere.
Quotations should be occasional gems that add sparkle to a page. Good quotes make important points in a memorable way. The problem is, good writing is hard to find in most judicial opinions, so quoting from them extensively tends to be deadly.
The overuse of underlining, italics and bold print is another problem. Visual clutter takes away from your message.
Don’t analyze. Some brief writers run through statutes and case holdings well enough but never really analyze the case, discuss the issues, show how the rules apply or address the difficulties they raise.
A brief is not just background information. It should show the court how to answer the hard questions and reach the right result—your result.
Tell no story. Every brief should tell the story of an injustice, a wrong that needs to be righted or avoided.
The story is central to the way we process facts. It is the basic system we use to teach, to understand, to instill moral precepts and to memorialize important events. Telling an engaging story in the statement of facts and the issues they raise gives meaning to an otherwise dry assemblage of information. How you do it depends on who you are writing the brief for.
Trial judges are folks in the trenches whose goal is to do elemental justice. Appellate judges want to right wrongs, too—within their job of weaving and repairing the fabric of the law.
Always keep in mind who is going to read your story.
The ABA Journal is occasionally reprinting some of Jim McElhaney's most popular columns from past years. This article originally appeared in the Journal's December 1996 issue under the headline "Twelve Ways to a Bad Brief."
Jim McElhaney is the Baker and Hostetler Distinguished Scholar in Trial Practice at Case Western Reserve University School of Law in Cleveland and the Joseph C. Hutcheson Distinguished Lecturer in Trial Advocacy at South Texas College of Law in Houston.