The legal writing expertise of Ross Guberman, after that of Bryan Garner, has become perhaps the most highly sought and widely used these days by members of our profession. (See Sternberg, Say What? An Interactive Experience in Effective Legal Writing with Ross Guberman, Appellate Issues (Feb. 18, 2020).) Regardless whether you can attend one of Guberman’s sessions, www.legalwritingpro.com, the website of the author of the acclaimed Point Made: How to Write Like the Nation’s Top Advocates is worth more than one visit for the insights and tips he offers in the articles and blog entries that are available there for free.
In the list of published articles on the site, you will find something called The Briefwriter’s Credo. Guberman styled the piece as a list of New Year’s resolutions (or “principles”) for advocacy writing when it was published in early 2009. But because these principles are timeless, it is just as useful today as a handy checklist to review before you start writing and during final edits. So here it is:
1. Each heading gives the judge a reason to do what is in the caption.
Each heading should give the judge a reason to rule as you are asking in the brief or motion, like so: “Sheriff Boniface’s refusal to deliver the April 2022 issue of People magazine to detainee Joel Garcia impermissibly violates Mr. Garcia’s free speech rights because the publication does not contain any written or visual material that might pose a threat to security at the jail.” This basic principle of good brief writing appears also in the number two spot in Guberman’s Five Resolutions for Litigators as a command to “[l]ead with why.” “Turn each heading into a reason the judge should do what you want,” Guberman advises. “In your first draft, include the word ‘because’ in every heading and subheading.”
This advice jibes with Garner’s instruction to draft each heading in the argument section as a complete sentence that advances your position and encapsulates an argument. Writing a heading containing a logical connector such as because or therefore will force you to include some reasoning and not merely state a conclusion. (Garner, The Winning Brief (3d ed. 2014) p. 403.) If you make a habit of this practice, your writing will become tighter and more focused, and the judge will be able to get an overview of your arguments just by flipping through your brief.
So instead of writing “This suit is barred by laches,” you would write “This suit is barred by laches because it was brought 25 years after the issuance of the original certificate,” as Frederick B. Wiener explains in Briefing and Arguing Federal Appeals (rev. ed. 1967) p. 67. In the same fashion, instead of writing “Any incremental flooding of [Mr. Rosenfield]’s floodplain lands caused by the Army Corps of Engineers’ operational decisions was not a taking,” you would write, “Any incremental flooding of [Mr. Rosenfield]’s floodplain lands caused by the Army Corps of Engineers’ operational decisions was not a taking because it was [only] temporary.” (The Winning Brief, p. 408.)
2. Each paragraph begins with a reason the judge should endorse the heading.
That is a laudable goal, but sometimes it takes more than one paragraph to set forth and explain a reason why the judge should endorse the heading. At the very least, strive to make each subhead under a particular heading provide a reason why the judge should endorse that heading. For example, the subhead under the heading concerning the temporary flooding of Mr. Rosenfield’s land might read “This Court has consistently held that temporary flooding of riparian lands is not a taking.” (Id.)
The third, fourth, fifth, and ninth principles listed in The Briefwriter’s Credo might best be viewed together and could be summarized as “Every bit of text follows logically from what was written before.”
3. Each paragraph opening follows logically from the first sentence of the paragraph before.
4. Each paragraph opening flows smoothly from the end of the paragraph before.
5. The remaining sentences in the paragraph develop the first sentence logically.
9. Each sentence begins with something the judge understands from the previous sentence so the paragraphs flow logically and smoothly.
You want your brief to be an easy read, not a frustrating workout. If the judge has to sweat and struggle to understand your arguments and find a reason why you should prevail, you’ve probably already lost. Every paragraph should flow seamlessly from the one that precedes it. As we have discussed previously in this column, one technique for building bridges between paragraphs is to include in the first sentence of each new paragraph a transition word, a pointing word like this or that, or a repetition of a key phrase from the preceding paragraph. Guberman has come up with a list of often overlooked transitions that you can use to avoid repeating the same ones over and over.
Of course, seamlessness within paragraphs is as important as seamlessness between them. Determine the topic of a paragraph before you start writing it and figure out how your thoughts concerning that topic fit together. Then check to see whether each sentence you have written after the first, topic sentence falls under that topic and follows logically from the preceding sentence. Make sure you haven’t gone off in a different direction within the paragraph.
When crafting your sentences, you might consider this advice from a New York Supreme Court Justice:
Start sentences with familiar, less important information. End sentences with new, more important information. The best writing repeats in the beginning of the second sentence concepts, names, phrases, and words taken from the end of the first sentence. Transition from sentence to sentence by going from old to new, from simple to complex. From short to long, or from general to specific. The strongest emphasis is at the end of a sentence. The second strongest is at the beginning [] [] []. The least emphasis is in the middle [] [] []. Example: “Bill drinks, but he’s a good worker.” Versus: “Bill’s a good worker, but he drinks.”
(Lebovits, Do’s, Don’ts, and Maybes: Legal Writing Do’s, Part II (2008) 80 NYSBA Journal 64.)
Lebovits and other legal writing experts say that if the logic and movement of your ideas are clear, then you can avoid overusing conjunctive adverbs like additionally or furthermore. (See id.)
Principles six through eight, as well as number 10, on Guberman’s list go to achieving brevity and clarity. These qualities are important to strive for lest you lose the judge’s attention and with that, the motion or the entire case.
6. Each case discussion tells the judge no more and no less than what the judge needs to know about the case to understand why the judge should do what you’re asking for in the current motion or brief.
This very important principle will be discussed further in a future column. For now, just remember that every detail you mention about a case should be one the judge must know to understand why you are citing it.
7. Each sentence contains the fewest number of words needed to make the point.
Try not to express more than one idea in a single sentence. Root out and eliminate word clutter. Favor simple, declarative sentences that contain a subject, an active verb, and an object, in that order. Limiting sentence length to less than 25 words is a good rule of thumb.
8. No point is made more than once in each section.
Within a section, don’t restate an argument you’ve already made in that section.
10. Abstract doctrines and rules are linked to one of the following four actors: the parties, a class of parties such as plaintiffs or defendants, the Court, or courts.
Why on earth would anyone include an abstract doctrine or rule in a brief that is not linked to one of those actors? But maybe that is exactly Guberman’s point with this resolution: do not bring up any extraneous, abstract doctrines or rules and, when discussing an abstract doctrine or rule, make it clear to whom you believe the rule or doctrine should apply (or who should apply it), how it should be applied, and what the result should be.
In general, the judge should never have to wonder why any particular piece of information is included in your brief. Constantly ask yourself, “Why does the court need to know this?” Or just, “So what?” If you regularly go through that exercise, your written advocacy will become more on point, more compelling, and, as a result, more likely to sway the court.
ABOUT THE AUTHOR:
Attorney Savannah Blackwell is a former news reporter who covered government and politics for more than a decade, mostly in San Francisco. She can be reached at savannah.blackwell@gmail.com.
Follow her on Twitter at @SavannahBinSF