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:

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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 . . .Continue Reading 10 Ways to Ruin a Perfectly Good Brief