McElhaney on Litigation
Write briefs as if they could win your case—because they can
Posted Jun 1, 2008 7:00 AM CST
By Jim EcElhaney
Angus and Judge Standwell are doing a series of programs for the local bar on legal writing. Last night the topic was style.
You could tell something was up as soon as we walked into the room. It was 10 minutes before starting time, and everyone was already sitting down. Angus and the judge were taking off their coats and getting out their lecture notes when Sandy Ramirez came up to the front. She gave each of them a copy of the statement of facts from a brief that was about to be filed in our state supreme court.
“Since tonight’s topic is style,” said Sandy, “we thought you might like to comment on the writing in this brief.”
“We’ve got time,” said Judge Standwell. “Let’s take a look at it.”
Five minutes later both Angus and the judge looked up. “Did you participate in writing this statement of facts?” Angus said to Sandy.
She shook her head, but you could hear people in the back starting to chuckle.
“OK,” said Judge Standwell. “Anyone in here work on this brief?”
“Kind of,” said Frank Logan, the head of Logan & Archuleta. “This is a ‘you bet your industry case,’ and I wasn’t happy with our brief. So we hired one of those national brief-writing companies to do a total rework for us, and some of us here wondered what you would think of it. Sandy volunteered to take it up front so you wouldn’t know where it came from until you’d read it.”
“I understood the facts,” said Judge Standwell, “so it passes the clarity test. But it didn’t tell a story. It was just facts.”
“It didn’t grab me, either,” said Angus. “It has no persuasive power. Plowing through pages of detailed information didn’t make me want you to win.”
Then Sandy said, “But we all thought you and the judge would be blown away by a $50,000 rewrite of Frank’s brief. That’s why everyone was laughing.”
“I’m really glad you did this, because there’s a great lesson here,” said Judge Standwell. “Like an opening statement in a trial, the statement of facts is the most important part of an appellate brief. It’s where you win or lose your case.”
“But I thought you’re not supposed to argue in the statement of facts,” said Frank.
“You’re not,” said the judge, “but there’s a difference between telling a persuasive story and telling people how to think.”
“Another point,” said Angus. “The legal rewrite companies haven’t lived with the case the way you have. So they typically divide the work among a group of different teams and then cobble it all together.”
“Which means the results tend to be bland,” said Judge Standwell.
“And you don’t want bland,” said Angus. “You want fire, sparkle, insight, conviction. You want your motions to come alive and your briefs to sing.”
“To do that, you need a little style,” said the judge. “Which takes us to this evening’s topic.”
Here are the notes I took from the back of the room.
FIND THE RIGHT TONE
Most legal writing is abysmal—stiff, abstract, stuffy. Why do we write that way in the first place?
It’s the curse of a traditional legal education. It taught us how to wrestle with the most difficult legal concepts in legalese, but not how to make them understandable to real people.
Finding the right tone goes beyond getting rid of verbal pomposity. You want your readers to feel that what you say—and how you say it—fits the situation.
It starts with getting the right level of formality.
A legal brief is not a tennis club newsletter. It’s no place for breezy informality.
On the other hand, just because your brief is an important legal document doesn’t mean you throw away clarity and simplicity. So don’t just avoid fancy words. Get rid of compound and complex sentences as well. They get in the way of instant understanding. One good idea per sentence is enough.
Tone also deals with problems like split infinitives and sentences that end with prepositions. Suppose in your first draft you write, “The defendant decided to completely abandon its first defense.”
Splitting the infinitive to abandon with the modifier completely wouldn’t even be noticed by half of your readers. But it would trouble some. And besides, it would really bother my beloved English teacher, Miss Margaret Sturr.
Some writers—and even some speakers—deliberately unsplit their infinitives so it is obvious they’ve done it. They put the modifier in front of the infinitive, like this: “The defendant decided completely to abandon its first defense.”
What does that “fix” do to the tone of the brief? It sends the message that the author is an academic twit.
Better to find a more comfortable spot for that misplaced modifier, completely. Like this: “The defendant decided to abandon its first defense completely.”
Or you could just leave it out: “The defendant decided to abandon its first defense.”
Finally, don’t use contractions in formal legal writing unless you’re quoting what somebody said.
SHOW, DON’T TELL
Modifiers are troublesome. We use far too many. To prove that point, take far out of the last sentence. Now it reads, “We use too many,” and it has more punch.
But what if you take out the too as well? Now the sentence says, “We use many,” an almost useless observation. Sometimes a simple modifier adds a lot.
Three more ideas:
• First, read what you write out loud as you edit your work.
• Second, verbs and nouns are the writer’s workhorses. They are the heart of what you have to say.
• Third, be careful with modifiers. The underlying message of too many adjectives and adverbs is, “The writer is telling you how to feel about what happened.”
But you haven’t earned the right to tell your readers how to feel.
That may sound radical, but it’s the idea behind the traditional advice to writers: “Show, don’t tell.”
When you show something with your writing, the reader thinks, “Oh, that’s what this is all about.” But when you try to tell something with adjectives and adverbs, the reader’s reaction is, “He’s really putting a spin on this whole story.”
The difference between showing and telling is, whose idea is it? People like their own ideas. That is part of your persuasive power.
MAKE EVERY PAGE ATTRACTIVE
Make the very appearance of your writing draw the reader into the page.
But with courts putting serious page limits on motions and briefs, most legal writing looks crammed. Gray pages say, “I dare you to get through this. Maybe you should try later.”
Large paragraphs are daunting. Break them up.
Use intriguing titles and subheads.
Try using a provocative quote from the trial as an epigram to introduce a new section: “We always said if there were eight work hours in a day, Michele would bill at least 16 of them.” Testimony of John Krueger, transcript page 322.
Use real words. Unfamiliar acronyms and abbreviations are distracting. Footnotes break up the flow of the text and force the reader to find his place again.
DON’T BE AWKWARD
Use the active voice. the passive voice is used by too many writers trying to sound formal.
Avoid the subjunctive mood. If you were to employ the subjunctive mood, people would sense that you were discussing something that is hypothetical in nature.
Avoid double negatives. It is not unlikely that you know someone who uses them all the time. Getting rid of the passive voice, the subjunctive mood and double negatives in everything you write would not be unreasonable.
MAKE IT COME ALIVE
There are lots of ways to highlight what really counts. One is to use the present tense whenever possible. It’s a comfortable way to write about all kinds of situations.
Another technique is to ask the reader a question. But is that wise? Certainly. It’s a great way to focus attention.
“But wait a minute,” you say. “I’ve always heard that rhetorical questions are dangerous.”
They are when you use them to argue a point. Suppose you write, “Can anyone doubt that the rule against perpetuities has outlived its usefulness?” They can and will—you just challenged them to.
Next, you can grab your reader’s attention by reworking an old phrase into a memorable point: “As a result, the city of Bedrock is now arguing that separate has somehow come to mean equal.”
At the end of the program, Frank Logan came up to the front and said to Angus and Judge Standwell, “I don’t know how to thank you enough for this evening.
I came thinking our firm had gotten a great brief for our money. But now I’m going to go back to our original brief and make it come alive.”
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. He is a senior editor and columnist for Litigation, the journal of the ABA Section of Litigation.