I recently discovered an extremely helpful resource for legal brief writers. Edited by Philip Allen Lacovara, senior counsel at Mayer Brown in New York, Effective Brief Writing, Chapter 7 of Federal Appellate Practice (The Bureau of National Affairs, Inc., 2008), is a comprehensive and useful resource for anyone wanting to know how to write a legal brief.

In this post—and in one more to follow—I offer some notes from this Chapter, and a few observations of my own.

Writing A Legal Brief: Maintain Credibility

typewriterTrust is an essential tool for effective legal advocacy. Your judge understands that he does not have comprehensive knowledge of the case, so he must rely on the lawyers to educate him. And while our adversarial process depends on a fair contest among opposing positions to help the Court find a relatively neutral understanding of the issues, judges—being human—are unavoidably subject to underlying emotional feelings about the advocates.

So, your brief must not only present a logical roadmap toward a favorable decision, but it must do so in a credible package. The authors offer some tips to help maintain credibility.

Do not take liberties characterizing authorities and other materials. Progressive drafting can sometimes cause the characterization of a persuasive authority to drift away from the meaning in the original. Before submitting a final draft, the writer should revisit cited material to make sure the brief fairly restates each source. And be careful with the tone used to discuss the other side’s material. You can be expected to declare that an opposing viewpoint is “wrong,” but if you insist that your opponent is being “absurd,” then you have invited your audience to wonder if your own argument is entirely logical.

Be careful with words like, “clearly.” If the issue was indeed so clear, then why is there a dispute? “Clearly” says to your reader, “Either you see it my way, or your judgment is suspect.” That is not a very persuasive proposition for an intelligent reader who is actively engaged in a fair reading of opposing arguments. Assert your position, prove it by reference to the facts and the law, and then move on.

Generally, maintain a professional, respectful tone. Do not show disrespect for the lower court that ruled against you. Be careful using humor (or just avoid it altogether). Your writing should not be stuffy, but when in doubt, err on the side of formality.

Writing A Legal Brief: Make It Readable

The tips offered in the Chapter, and summarized in these posts, essentially ask the writer to be mindful of the judge’s experience when reading the brief. The reminder to make your brief readable is no different. Your judge is basically a legal professional who must read and evaluate thousands of pages of material. A good way to help the judge see it your way is to make the task of reading your brief more enjoyable—or at least less onerous.

Avoid using unnecessary words. Even the most eloquent, persuasive, insightful, and illuminating adjectives can do more harm than good in the mind of a judge who just wants you to get to the point.

Be aware of your pacing. You can relieve monotony by simply breaking up the text with sentences of varying length, tone, and structure. Try it.

Always use the active voice, especially when asserting facts, law or arguments that support your position. A passive construction can be used when describing a contrary element.

The section above urged formality, but cautioned against stuffiness. Avoid legalisms and archaic language. Identify people by name, and not as “the Appellee,” or “the Officer.” For basic propositions of law, do not clutter up the text with long, essentially-repetitive string cites.

Analogies, literary references, and cultural allusions can be helpful when trying to illustrate the progressive logic of an argument, but you should use this tact carefully. By their nature, these references require selective and artificial connections between the elements in the argument and in the analogy, so their use might create problems of tone or credibility. And you always face a danger that a clever opponent might insert an element of her argument into your allusion to colorfully make her own point, and eviscerate your own.

The Chapter has more to offer, so look for one more post to learn more about writing a legal brief.