Reprinted with permission from the May 19, 2014 edition of Texas Lawyer © 2014 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, firstname.lastname@example.org or visit www.almreprints.com
The legal world takes excellent writers and makes them judges, thereby condemning them to read a lot of bad writing. But it doesn't have to be that way. By following three simple tips—plan more, write less and edit more—lawyers can perform a valuable public service by drafting briefs and motions that judges actually may enjoy reading.
Tip No. 1: Plan more. Judges, law clerks and staff attorneys spend countless hours flipping back and forth in parties' briefs trying to separate the wheat of a coherent argument from the chaff of bad writing. Too often, writers take a shotgun approach that is more stream of consciousness than streamlined. Many times, the problem is just a lack of planning before drafting.
Different writers have different techniques—from detailed outlines to short bullet points—but drafting a good brief or motion is much easier with a template to follow. Take the time to let ideas germinate, and be willing to rearrange preconceived notions of the logical order.
The planning stages also should involve a triage of the legal issues. While throwing everything against the wall and seeing what sticks may have worked on issue-spotter exams in law school, judges in the real world do not want to wade through near-frivolous arguments.
A legal brief isn't a murder-mystery novel; don't leave the reader hanging. Put your strongest arguments up front and focus primarily on them. Leave any arguments that are less likely to succeed for the end (if they must be there at all).
Tip No. 2: Write less. The best way to simplify your writing is simply to have less of it. U.S. Supreme Court Justice Clarence Thomas has commented that, when he wrote briefs as a lawyer, he always thought about the fact that his writing was not the most important thing the judge had to read that day.
A self-aware humility about one's own writing places the emphasis squarely where it should be: on the arguments themselves. Judges are busy and have a lot to read. Do them (and yourself) a favor by being as concise as possible.
In writing, as with many things in life, begin with the end in mind. Never start drafting a document without knowing the word limit or page count. Once you have that number, make it your goal to come in at least 10 percent under the limit. It is rare that a document for a court should even approach the limit. Judges will find you more credible if you make only legitimate arguments and are confident enough to avoid needless repetition.
Attorneys are notorious for saying a lot without actually saying much. Law school legal-writing mantras preach reinforcing your conclusion at every turn. But it makes little sense to repeat the same tired phrases as if trying to hypnotize the judge into acquiescing to your position.
Choose simple words whenever possible: "use" instead of "utilize," "help" instead of "facilitate," "before" instead of "prior to." Keep your sentences and paragraphs short; they're easier to read and understand. That rule of thumb applies in spades to headings, which are useless (or worse) if overlong.
Tip No. 3: Edit more. As the saying goes, there's no such thing as good writing, only good rewriting. The tendency when writing, though, is to become personally invested in the product. It is, after all, the fruit of one's labor and, like any art, a reflection of personal style and talent.
But falling in love with your own writing makes it difficult to be the ruthless reviser you must be to succeed. That's why good writers can detach themselves from previous iterations of their own ideas. The best writers mercilessly trim unnecessary words, rewrite anything that is slightly awkward, and—when necessary—cut entire sentences or paragraphs that cannot sufficiently justify their existence.
In oral argument, the goal is not to waste any words. That rule applies just as forcefully to written arguments, where authors should toss overboard throat-clearing phrases ("and will show as follows") and virtually every adverb. Good writing requires a "take no prisoners" approach. Everything that does not advance your arguments must go.
For help in making those difficult calls, wherever possible ask others who do not have your expertise or training to read the brief or motion. If they can follow it, a busy judge with a stack of other briefs and motions to read likely can, too.
And that should be the goal: to make the judge's job as easy as possible. Doing so will earn you credibility and improve your chances of success. After all, any fool can make something complicated. Simple is harder, but it's well worth the effort.
Allyson N. Ho is co-chair of the appellate practice at Morgan, Lewis & Bockius. She litigates high-stakes appeals and handles complex legal issues for clients in Texas and across the country.