I recently discovered an extremely helpful resource that sets out some essential guidelines for persuasive written advocacy. 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 final post of my series, I offer some notes from the Chapter, and a few observations of my own.

Writing A Legal Brief: Positive Visual Impact

Believe it or not, this tip is not some thinly veiled plug for Cockle Legal Briefs—the world leader in quality legal brief formatting and printing—but is an actual recommendation from the authors of the Chapter. And it makes sense, because presentation does matter.

keyboard workWhether we like or not, the art of weighing competing legal theories goes well beyond a mechanical balancing of arguments and conflicting authority. Humans—including judges—will always bring their own human-ness into the process. Past experience and present conditions will impact the mind of the reader. And a part of that is the esthetic presentation of the brief.

Beyond simply following the formatting requirements found in the Court’s rules, the brief filer can make many choices to influence the look and attractiveness of the brief. Professional formatting will undeniably enhance the professionalism of your argument. High-quality printing, binding and trimming will ensure that your reader’s tactile experience with the brief will not distract from the impact of your words.

Writing A Legal Brief: Some Final Tips

A note about block quotes: nobody reads them. A block quote can be a useful way to impart the sense that a persuasive authority has squarely addressed the issue, and that the brief writer is not afraid to rely on the very words of the authority to express a compelling point about this case. But remember: nobody actually reads them. If you fill your pages with block quotes, you are inviting the judge to skip over those elements—and large sections of your argument. Because, again: nobody reads block quotes. And be careful not to bury a particularly important clause or pithy digression within a block quote. Why? All together now: nobody reads them.

Nothing in legal writing generates as much conflicting opinion as the question of footnotes. Some writers insist that any point that cannot seamlessly integrate into the main text should not be included at all. Others believe that footnotes can buttress the main theme of the brief, providing a space for supportive authorities and corollaries to suggest a broader legal landscape, ready to accommodate the result urged in the main text. One side sees a distracting crutch for lazy organization, and the other sees a legitimate prosaic tool that credits the reader with an ability to weave together various thematic strands.

It’s a judgment call. Review your draft. Did you leave out too much good stuff because you could not find a comfortable way to fit it in with your main themes? Try some footnotes. Or does your brief look like a Junot Diaz novel, telling complete ancillary stories in pages and pages of footnotes, often spooling out completely independent of the main text? Maybe it’s time to cut.

The authors conclude the Chapter by offering a final note of caution about using another attorney’s work in your brief. Your research will often lead you to other works pertinent to your case. You may even find a brief or memorandum written by an attorney who has very effectively made the points you hope to make in your document. But in some jurisdictions and legal cultures, unattributed copying is an ethical breach. Paraphrase or attribute, but do not just copy.