10 Ways to Ruin a Perfectly Good Brief
Happy families are all alike; every unhappy family is unhappy in its own way. Leo Tolstoy I wrote that. With briefs, it's the opposite: Good briefs are unique, but miserable ones have an awful lot in common. My job has given me the opportunity to read (and, unfortunately, write) more than my share of bad briefs. Through careful study, I've distilled a list of 10 foolproof ways to turn a good brief bad:
- Take shortcuts. Here's how you write a brief: brainstorm, research, brainstorm, outline, draft, revise, cite check. Skipping any of these steps to save time will backfire. If you don't outline, it will take you twice as long to write, and your brief will likely be poorly structured and repetitive. If you don't brainstorm, then you may miss a key point. If you don't cite-check, you will be embarrassed sooner or later. And if you don't research or revise, then may God have mercy on your soul.
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- Keep the court in suspense. On brief and in argument, get straight to the point. Your audience should understand the crux of your argument within 60 seconds. Don't keep the court in suspense by backing into things with an atmospheric statement of the case. Remember: Michael Bay, not Alfred Hitchcock.
- Argue too many issues. There should not be more than 3 assignments of error/questions presented/major issues in any appellate brief. Aim for the jugular and let the rest go--a cheerful holiday thought from Justice Holmes, one of the cuddliest jurists to grace the bench. If you're not going to win on your strongest points, then you will certainly lose on your weaker ones. Some lawyers have told me that there is no harm in throwing in another argument or appeal point to see if it sticks. That's wrong. Judges have limited time to devote to your case, and you have few words in which to convince them. Excess argument dilutes your brief and erodes your credibility. As Justice Scalia likes to say, anything that doesn't help, hurts.
- Ignore the other side's best arguments. The point of writing a brief is to help the judge arrive at the correct conclusion (i.e., the one you're advocating). You cannot do that without addressing the other side's best arguments. Those arguments will come out eventually, and the judge will have to grapple with them. Give her the tools to do so. Ignoring the other side's best points suggests that (i) you cannot rebut them or (ii) you were not clever enough to see them coming. Neither is an impression that you want to create. The only thing worse than ignoring the other side's best arguments is caricaturing them.
- Call the other side names. Okay, so I might have brought this up once or twice in the past. Let the pony do his trick. Judges are trying to arrive at the legally correct result in a given case. That rarely has anything to do with opposing counsel, no matter how desperate, disingenuous, obfuscatory, or prevaricose he or she may be. (If prevaricose isn't a word, it should be.)
More after the jump . . .
- Repeat yourself. I know a lawyer who likes to tell judges what he's going to tell them, tell them, and then tell them what he's told them. End result: his brief is 3 times as long as it should be, and a real pleasure to read. You can get the same benefit in 1/3 the time by (1) framing the questions presented, (2) making your arguments well once, (3) giving the reader descriptive headings and subheadings and (4) providing a conclusion that states the specific relief sought. Say it once, clearly.
- Use nominalizations. Somewhere in law school, we picked up the weird habit of taking verbs--those actions words literate people use--and turning the into Latinate "tion" nouns. The new nouns then require their own set of verbs, articles, and preposition, all of which complicates structure, and encourages wordiness and passive sentence construction. For instance, normal person Joe Smith might "evaluate his options." A lawyer, by contrast, might "find it notable that an evaluation of his options was undertaken by Joe Smith (the "Evaluator" or "Mr. Smith")."
- Drop copious footnotes. If it's not important enough to go in the text, it's not important enough to go in the brief. The only exceptions are (i) when you have a minor subject that you have to address in candor to the court or (ii) citations, which are acceptable in footnotes if they would break the flow of your writing in the text.
- Quote with abandon. Block quotes are hard to read. That's bad. Splicing quotations from case law into sentences is harder to read. That's worse--especially if you are a fan of the "[a]wkward bracket and . . . ellipse technique . . . ." And burying your argument in a string of parentheticals is just brutal. It makes the reader work way too hard. You are the author. Exercise dominion over your brief. Discuss your authorities. Paraphrase them and weave them into your argument.
- Take unreasonable positions. The most elegant argument in the world won't do you any good if it is advanced in support of an untenable position.
There you go. What do you think--have I left out any of your pet peeves, or condemned a perfectly acceptable technique?
Come on Jay, calling the other side names can be so much fun! In all seriousness, this is a great and quick guide to what to avoid. Thanks
It's not just calling names that's fun--being called names can be quite rewarding, too. When dealing with nasty opposing counsel, try making up bingo cards for the members of your case team. Each square is randomly assigned a loaded word (disingenous, desperate, misstates, 11th-hour, last-distch, desparate, etc.) First person to bingo in a pleading wins.
Good post, Jay! Another way to ruin a brief ... Failing to read and re-read. If my deadline for a brief is 4:00 to get it filed by 4:30, then my real deadline is 3:00 so that I can read it aloud and re-read one more. I "always" find typo's and awkward statements in my final draft. And yet, I have an extra hour before the deadline to fix them.
Second Chris and Matt - fantastic points, well presented. I must admit to feeling somewhat prevaricose recently though.
Good article. I propose an addition to your list.
11. Ignore the Rules of Court: Courts have rules for appellate briefs. The rules not only include such matters as font size and page limitations but also requirements for citations to the record and citations to relevant authority. Ignore these rules at your peril. Courts are known to have ignored issues raised in a brief and even fined lawyers who fail to follow rules of procedure.
Thanks--those are terrific suggestions. Except for yours, Tim. It is desperate, frivolous pretext. Your thinly veiled humor is disingenuous, and it is rejected. My client has authorized me to ask for costs incurred in response. And Chris gets bingo.
Seriously, those are worthy additions. John, the Fourth Circuit's recent opinion in Francis has a nasty coda about following local rules that reinforces your point. As a less dramatic aside. I was involved in a case once where the SCV required the other side to resubmit its brief because it did not comply with font and typeface requirements. Ouch.
Matthew, I agree wholheartedly. I do something very similar in my practice.
What's Prevaricose? And Yay, I got Bingo.
I like the conversation. Thanks guys.
"Prevaricose" is a made-up adjectival form of "prevaricate." Cf. "disingenuity" (the quality of lacking in candor) and "presext" (what Tiger was doing on his phone), both of which are perfectly cromulent words. Congrats on bingo, and happy holidays.
Thanks Jay, for both the explanation (as it is) and the holiday wishes. Back at you!