The four judges on the opening panel of the Barristers Annual Meeting offered a number of tips for writing better briefs that reflected not only their preferences, but those of judges across the nation. The advice dispensed by Teri L. Jackson, Presiding Justice of the California Court of Appeal, First District; Goodwin H. Liu, Associate Justice of the California Supreme Court; William H. Orrick, Judge of the United States District Court, Northern District of California; and Anne-Christine Massullo, Judge of the San Francisco Superior Court, also echoed that offered by judges at previous BASF events. Many of the suggestions will sound familiar to readers of the legal writing column in the BASF Bulletin.
Table of Contents
- Be clear and concise.
- Use the active voice.
- Stay away from adjectives and adverbs.
- Establish and maintain credibility.
- Go for understatement.
- Do not disparage the other side.
- Take the judge by the hand by including a short introduction.
- Keep it simple—do not be afraid to waive a loser issue.
- Show restraint in your use of case law.
- Never misquote (or misuse) the law.
- Focus on the facts of your case.
- Use footnotes sparingly.
- Just for appeals
- Leave time for editing.
Be clear and concise.
These words, which should be the mantra of all writers, came from Judge Orrick, and no jurist or clerk would disagree with him. There are, of course, many ways to achieve clarity and brevity. For example, you can shorten your sentences by avoiding useless “throat-clearing” phrases like “it should be noted that” and “it is important to bear in mind that,” as Garner instructs in The Winning Brief.
Some of the techniques for writing “brisk, uncluttered sentences” that we have covered in the Bulletin’s legal writing column include avoiding compound constructions like “at that point in time” and “in the majority of instances” when “then” and “usually” will do (respectively) and keeping an eye out for sentences that start with “it” or “there” followed immediately by a “to be” verb, as these often contain excess verbiage.
We’ve also talked about favoring the simple, declarative sentence containing just one thought expressed in no more than 20 or 25 words on average, with the actor (the subject) generally appearing first, the action (the verb) second, and the object (of the action) third, and refraining from cramming so many words in between these three key components of the sentence that the judge may lose track of them and have to read the sentence more than once to get its meaning.
In addition, we’ve discussed the importance of placing modifiers—a word or collection of words that changes, qualifies, or limits another word or series of words—in the correct positions in sentences so that their referents are obvious and avoiding “nesting” modifiers (modifiers within modifiers).
And we’ve told you to make your points easier to follow by beginning each paragraph with a topic sentence, building bridges between paragraphs and making sure that any given sentence flows from the one that precedes it.
Use the active voice.
This important tip also came from Judge Orrick. And it, too, is one that we covered previously. Following it will make your writing livelier, more concise, and more readable, as the reader will easily be able to discern who is doing what in any given sentence. For example, write “Judge Orrick gave good advice,” rather than “Good advice was given by Judge Orrick.”
Stay away from adjectives and adverbs.
Judge Massullo advised limiting the use of adjectives. Judge Orrick said, “No adverbs either.”
With Justice Jackson undoubtedly in agreement, Justice Liu echoed Judges Massullo and Orrick: “No adjectives and no adverbs.”
Overuse of adjectives and abverbs is a sign of weak writing. To keep the judge’s attention and make your points more forcefully, cast out adjectives and adverbs and instead choose stronger, more vivid verbs and more precise or more apt nouns. For example, write marched or strode in lieu of briskly walked, and landmarks instead of famous places, as Garner suggests in The Winning Brief.
Try to remember that in brief-writing, your reader is the judge or the clerk, not a member of the jury. Avoid overreaching on a point and eschew exaggerations like, "Their argument is totally and completely without merit."
Establish and maintain credibility.
Avoiding adjectives and adverbs will also aid in the pursuit of two goals that the judges on the B.A.M. opening panel advised striving for: achieving an understated, rather than overstated, tone and refraining from trashing your opponent. Both are key to establishing and maintaining credibility, which, of course, is crucial if you want to convince the court that your desired outcome is the superior, more reasonable choice.
Go for understatement.
Try to remember that in brief-writing, your reader is the judge or the clerk, not a member of the jury. Avoid overreaching on a point and eschew exaggerations like, “Their argument is totally and completely without merit.”
“Go for understatement, not overstatement,” Judge Orrick said. “When you exaggerate you lose credibility straight away.”
The points expressed in half of the briefs that Judge Orrick reads are overstated, he said. “Put yourself in our shoes,” he advised. “We’re not going to feel the outrage that you do. If you express outrage, you are tarring yourself. Dialing it back is the smartest thing you can do.”
Additionally, if you make an extreme statement like, say, “no case [or not one shred of evidence] exists to support their argument,” you had better be 100 percent sure that you are 100 percent correct and that the matter is not open to interpretation, because an assertion like that is an invitation to the clerk or the judge to search for that one case or that one speck of evidence that will prove you wrong.
Do not disparage the other side.
When stating the erroneousness of the opposing party’s position, “don’t cross the line,” Judge Massullo instructed.
If you want the court to take you seriously (and if you care about your reputation), use a civil tone—not just when speaking in court, but also in writing your briefs. Insulting the other side’s position or twisting or mischaracterizing their argument to suit your own is never a wise move.
Assailing opposing counsel personally is another good way to make the judge distrust you and suspect that your argument is weak.
Moreover, the court finds derision and exaggeration “distracting,” as Justice Jackson put it.
Guberman’s survey of judges revealed that most of them are annoyed by attack terms that attorneys often use to describe their opponents’ arguments—words like “disingenuous,” “baseless,” and “sanctionable.”
As Judge Orrick advised, “Be clear, understated, [and] totally reliable … [in] whatever you submit.”
Take the judge by the hand by including a short introduction.
Teachers of news writing instruct their students to “take the reader by the hand.” Attorneys writing for the court should follow the directive as well. Organize your material in a linear, logical manner so that reading your brief is not a workout.
At the very beginning, give the judge some orientation. Do not make the court slog through several pages to get a sense of what the case or the issue is about. So, as Judge Orrick advised, include a short introduction in your brief. This is where you will “bring [the judge] into the document,” as an attorney on a BASF legal-writing panel that we covered in the Bulletin explained, and “encapsulate what it is you’re after and what your argument is … [in] a really focused way.”
A strong introduction will help you “hone [your] theory of the case” and “shape the fact section and legal argument to come,” Guberman has said.
In crafting the introduction, consider using one (or all) of Guberman’s techniques, as we discussed in a Bulletin column.
“Tell us what this case is about and how it should be resolved,” Justice Liu said at the B.A.M. session. “Explain in plain English … with no citations why your position makes sense.”
And if there is a common-sense reason why you should you win, definitely include it. “Judges like common sense,” Justice Liu added.
(You might consider also including a summary of argument.)
Keep it simple—do not be afraid to waive a loser issue.
Judge Orrick advised us to refrain from writing about issues that are losers—lest the judge lose track of our best argument. This guidance is akin to an instruction offered by another judge when she sat on a BASF legal-writing panel several ago: do not “ask for the moon” as a strategy for getting a more minor request granted. Judge Orrick’s instruction also underscored the importance of laying out our best argument first—always.
Show restraint in your use of case law.
Judges are not impressed by a long series of citations.
“No string cites,” Judge Orrick said.
At the very least, do not cite more than one case for a proposition or rule that no one is going to challenge, like, say, the standard for summary judgment.
For that matter, when laying out more complex points of law, there is no need to cite more than a small handful of cases. As Judge Massullo pointed out, “With any body of law, there are probably four or five [cases] that define the law.”
And, even when showing support for an argument you know the other side will challenge, “it’s really not helpful [to the court] to have a large number of cases cited,” Judge Orrick said. “You want to focus the court on the best cases you have.”
In his report based on his survey of judges, Guberman included a quotation that appears to reflect the consensus of the bench on this issue: “I am much more persuaded by one or two authorities that are carefully analyzed and applied than by a sprinkling of quotations lifted from a dozen cases that are strung together.”
When judges see citation after citation after citation, they “get a little lost,” Justice Liu explained. “What is the reasoning?” he asked. Showcase your reasoning, [because] that is what the court values, he said.
To that end, when presenting a case, be sure to tell the courts in your own words why you are citing the case—what impact does the case have on your own? Do not make the judge have to guess why the citation matters. And never rely on a quotation from a case to make your point.
As for how deeply to go into the facts, lengthy discussions of facts are generally not necessary and often not very helpful, the judges said. But do tell the court if the facts of the case you are citing are “spot on,” as Judge Massullo and Justice Jackson advised, and then show how so.
Along the same vein, if you believe the court should follow a particular case, say so directly, Justice Jackson said, and then explain why in your own words.
Likewise, if you think the court should “go in a different direction” than the case law points to, say so outright, Justice Jackson said, and again, explain why in your own words.
Never misquote (or misuse) the law.
Judge Massullo urged us not to misquote the law. And we should not misuse it, either. As Guberman has noted, judges do not like it when you tell them or imply that a case means something other than what it does. Avoid quoting a snippet that sounds good when, in the context of the case in which the language appears, it does not actually support your argument, or worse—the outcome of the case you are citing is actually contrary.
Like refraining from disparaging your opponent, following this guideline is also an important way to establish and maintain credibility with the court.
Focus on the facts of your case.
“If the facts support your position, you will probably get a ruling in your favor,” Judge Massullo said.
“I’m always more interested in the facts than the law,” Judge Orrick said.
In setting out the facts, do so in the form of a narrative and make sure to include only those that the judge needs to know to decide the matter (while taking care not to avoid the bad ones). Otherwise, the court may get distracted trying to figure out why you mentioned a particular fact or set of facts.
Use footnotes sparingly.
Make that very, very sparingly.
Justice Liu said he clerked for a judge on the U.S. Court of Appeals for the District Court of Columbia Circuit who “never used footnotes.” So, Liu adopted that approach and, throughout his 10 years on the bench, he “ha[s] not used a single footnote,” the justice said.
“You’d be surprised—if you discipline yourself about footnotes, you’ll discover just how far you can go without ever having to drop one,” Justice Liu added.
Of course, you should never put an important point in a footnote. And many legal writing experts say that if the point is not important, then there really is no reason for it to appear anywhere in your brief.
Justice Jackson said that when she was a judge on the trial court, she was not a fan of briefs that made heavy use of footnotes. Occasionally, however, she might use one these days when writing an opinion for the appellate court “just to educate or tell the parties there may be an issue coming up in the future” and explain how it will be handled.
Judge Massullo said she sometimes uses a footnote or two when writing an opinion involving complex litigation “to explain to the attorneys that [she has] thought through the issues” or “to instruct the attorneys and the trial court.”
But bear in mind that when writing a brief to the court, it is best to stay away from footnotes.
Just for appeals
In writing an appeal, be sure not to bring up an issue that did not go before the trial court (unless it involves subject matter jurisdiction) or bring one up for the first time in your reply.
Not only is it improper, “it’s distracting,” Justice Jackson said.
Leave time for editing.
This directive is an important one that is particularly difficult for busy attorneys to follow.
“Put [the brief] away for a day, and then look at it again and start editing,” Judge Massullo said.
Better yet, she added, “leave a week or two before the brief is due” for editing.
If you can manage to do that, you will end up with a much stronger piece of written advocacy.
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