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Story Line


“It’s their legal education,” says Barry McNeil from Haynes and Boone in Dallas. “The new young lawyers are smart. They know the law and they cite the right cases. But there’s something missing in their writing. It’s dull. Their briefs don’t sing.”

It’s not simply what goes into the brief that counts. A winning brief is more than a stack of legal issues strung together under a group of different headings. A winning brief has to stand out from the pile of all the other papers on the judge’s desk. It has to command the reader’s attention and hold it to the end. If a brief can’t hold the reader’s attention, it fails its first and most important test.

Without question, a good brief has to be simple, plausible, logical and honest so it will earn the respect of the reader. More than that, its ideas have to come alive so they make the kinds of memories that will keep on persuading after it’s been read. But to really sing, a winning brief has to have a theme, a theory, a guiding idea that ties everything together into a simple package that satisfies both the head and the heart. A tall order? Without a doubt.

But there are things you can do that will make every brief you write come closer to the mark.

What’s the Big Idea?

First, look for the big ideas that run throughout the case. This is not the usual way to start writing a brief because it runs counter to our law school training. Traditional case analysis concentrates on taking a case apart–not putting it together. We break it down into separate legal issues and discuss them one at a time.

Thus fragmented, the scattered parts begin to lose their identity and much of their impact. The trial judge’s evidence rulings become isolated questions of relevance, hearsay or privilege instead of decisions that distorted the picture of the facts presented to the jury. The jury instructions become questions of word choice and semantics rather than keys to whether the fact-finders were given the wrong measuring stick to test the plaintiff’s case. Look at it this way: You wouldn’t think of trying a lawsuit without having a theory of the case. Why should you ever argue an appeal–or even a pretrial motion–without one? The fact is, a good theory of the case is more important than ever. A brief is no longer simply a list of authorities that support an oral argument (if it ever was). As James W. Jeans Sr. of Kansas City, Mo., author of Trial Advocacy, says, “As courts continue to truncate oral argument, it becomes even more important to give a pithy–and moving–presentation of what the case is all about. If you don’t have time for it in your oral argument, it’s got to be in your brief.

“It’s not enough to show the court of appeals that the trial judge made a mistake,” says Jeans. “Appellate courts ignore trial courts’ mistakes all the time. The biggest list of cases you will find in any jurisdiction falls under the heading of ‘harmless error.’ The lawyer’s job is not simply to point out the mistakes but to persuade the appellate court that those mistakes add up to an injustice.”

How do you persuade the court there was an injustice–a wrong it needs to right? With the story.

The story is the basic human mechanism for understanding facts and processing ideas. Use the statement of facts to tell the story of the case. Spend more time on it than anything else in your brief.

And how do you put the story together? That’s where the theme comes in. It’s the big idea that ties it all together. It’s the consistent, recurring point that keeps surfacing in different ways throughout the facts.

There are three reasons why the right theme helps turn a set of facts into a powerful story: A consistent pattern of facts is more memorable than a series of isolated, unconnected ideas. A consistent pattern of facts is persuasive. And a consistent pattern of facts suggests it’s the result of a conscious motive–without you ever having to say so. See how it works in a simple product liability case.

You represent Sandra Wiltner, a young woman who suddenly became a paraplegic when her car ran off the road and hit a tree. She claims there was a defect in the steering mechanism that caused the crash. Federal Motors, the company that made her car, says Ms. Wiltner was talking on her cellular phone when she lost control driving down a twisty canyon road, and she just wasn’t paying enough attention to her driving. The trial had its ups and downs, but you were devastated by the verdict, which found Federal Motors 40 percent negligent and Ms. Wiltner 60 percent negligent–which means no recovery at all under your state’s comparative negligence statute.

You don’t have much to work with on appeal: a few mistaken evidence rulings that don’t look like they add up to reversible error, a garbled jury instruction that the judge tried to correct, and an interesting question about whether one of your experts should have been permitted to testify.

A Matter of Timing

When the ambulance arrived at the crash scene, Sandra Wiltner told the emergency medical team that she lost control of her car when the steering locked up on a turn. The judge kept that evidence out, saying it didn’t qualify as an excited utterance because Ms. Wiltner had 20 minutes to think it over before the ambulance arrived.

Of course, when Sandra testified, she explained how the steering locked up coming around a turn, so the jury heard her story. They just didn’t hear that she had told it to the emergency medical team right at the scene.

But then on cross-examination, the defense lawyer implied that Sandra had made up the story about the steering when she talked to her first lawyer. You were delighted. You were certain the attack opened the door for what Sandra told the medical team. But the judge still kept the evidence out, saying it was self-serving.

Later in the trial, the judge kept out evidence of complaints about the steering by other owners of the same model car. Since the complaints were about “stiffness” and not actually “locking up” the steering, the judge said they weren’t relevant to your case. There’s no telling where the garbled part of the jury instructions came from. They implied that the plaintiff’s burden of proof was by clear and convincing evidence. After you objected, the judge tried to straighten it out, but you think he just made it worse. Anyway, there were other parts of the instructions that talked about a preponderance of the evidence, which watered this issue down a bit.

The most interesting ruling kept one of your experts, Michael Hermann, off the witness stand altogether. Hermann used to work for Federal Motors as a design engineer, but the management fired him after discovering he had talked to the press about what he said was a dangerous brake design in one of their cars.

When Hermann sued Federal Motors for wrongful discharge, they settled the case for a lot of money and in return got him to sign an agreement that he would never testify against them in any product liability case.

The judge decided that Federal Motors could enforce this strange agreement in your case, forcing you to find another expert, which you did. And even though you think there are powerful reasons why a contract like this should never be enforceable, your state supreme court has written a string of troublesome decisions that make this a difficult question.

Now take a step back for a moment. Just outlining the issues has made you focus in on hearsay exceptions, the relevance problems in similar events, mangled jury instructions, and the interesting question of whether a settlement agreement can buy off an expert witness.

Where is the theme–the recurring point that keeps surfacing throughout the case? It’s in your statement of facts:

“Coming around a hairpin curve on Canyon Road, the steering wheel suddenly locked and Sandra Wiltner’s new Federal Motors Arrow jumped the curb and hit a tree trunk at the side of the road. Twenty minutes later, when the county emergency medical team arrived, they asked Sandra what happened as they strapped her on the stretcher. She told them the steering wheel had locked up and the car went out of control. But the judge kept what she told them from the jury.

“This was not the first time a 1996 Arrow had steering problems. The design was a new one, using a series of levers as well as gears to adjust the feel of the steering wheel to the road. In the first three months of sales, Federal Motors received more than 2,800 customer complaints about stiff or difficult steering. But the judge decided to keep the information about those complaints from the jury.”

Point by point, you tell the story of the case, weaving in the judge’s rulings that left the jury with a distorted view of the facts and a misshapen measuring stick with which to judge it.

McElhaney at His Best

The ABA Journal is occasionally reprinting some of James McElhaney’s most popular columns from past years. This article originally appeared in the Journal’s March 1997 issue under the headline “Briefs That Sing.”


James W. 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. He is a senior editor and columnist for Litigation, the journal of the ABA Section of Litigation.


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