Ayesha Khan//August 3, 2020
//August 3, 2020
A good brief writer starts with a solid skeleton and, after putting flesh on the bones, edits the document to tighten and simplify. What you ultimately file should be easy on the eyes and even easier on the brain. Here are some tips to help you get there:
Provide a road map for your reader. Use headings and subheadings to break up the document and provide signposts for your arguments. For major documents (appellate briefs, dispositive-motion memoranda, etc.), include a Table of Contents and a Table of Authorities even if not required by the local rules.
Make headings and subheadings work for you. They should be argumentative, not topical, and they should be statements, not questions. “The Admissibility of Plaintiff’s Expert Testimony” is a waste of words. “Did the trial court err in admitting the plaintiff’s expert?” tells the reader nothing about your position. This is better: “The district court properly applied Daubert and its progeny in excluding Joe Schmoe’s testimony as scientifically unreliable.”
Level with the court. Don’t misrepresent the facts (at the trial level) or the record (on appeal). Place unfavorable facts in context, rather than ignoring them. Likewise, don’t mischaracterize case law or ignore your most difficult precedent. Acknowledge the problematic cases and explain why you should prevail anyway.
Communicate, don’t pontificate. The point is to persuade, not to make the judges or your client think you’re smart. Don’t use a $5 word when a 50-cent one will do. As one of my earlier columns advised, don’t speak in Latin or legalese.
Don’t holler. Use bold, underlining, or italics — not all caps — for emphasis, and even then, do so sparingly. Avoid intensifying adverbs like extremely, obviously, indisputably, very, truly, clearly, and the like. Words like that not only diminish your credibility and make you sound like a blowhard, they also set the bar higher than necessary. You only need to convince the court that your argument is correct; not that it is “obviously” so.
Avoid block quotations. A reader’s eye naturally jumps over them. When you have no choice but to quote at length, summarize the substance in the sentence immediately preceding the quotation.
Avoid footnotes. They may not be read, so they are most certainly not the place to deal with the other side’s strongest point or the case most harmful to your position. That will just broadcast that you don’t have a strong response. And avoid putting your citations in footnotes, even if some accomplished legal writers insist that it will make your prose more readable. Prose that is readable, but lacking in support, will get you nowhere.
The shorter, the better. Keep only what’s necessary, whether it’s arguments or words. As Stephen King advises, “Kill your darlings, even when it breaks your egocentric little scribbler’s heart.” Keep paragraphs and sentences short, too, with at least two-three paragraphs on a typed page and sentences running no more than three or so typed lines each.
Use the parties’ names. Unless court rules require otherwise, refer to parties by name rather than by their status in the litigation. Referring to a party as “plaintiff,” “defendant,” “appellant,” or “appellee” simply forces the reader to stop and consult the caption.
Sweat the small stuff. Make sure you know the differences between “which” and “that” and “who” and “whom.” Put “however” in the middle, not at the beginning, of a sentence. Learn the rules about hyphenating compound adjectives. And do your best to get rid of typos, to correct formatting errors, and to ensure that your citations are proper. A judge will think, rightly or wrongly, that a lawyer who makes small mistakes also makes big ones.
Most judges are busy generalists. They don’t have the time or expertise to wade through case law, to absorb every fact, or to curate your arguments. They count on the lawyers to give them what they need to know in an easy-to-digest format. If you follow the guidelines listed above, you’ll be well on your way to delivering on that expectation.
Ayesha N. Khan, a partner with the Potomac Law Group, represents companies and individuals in trial and appellate litigation in Maryland, the District of Columbia, and federal courts around the country. She can be reached at [email protected] or 202-836-7136.g