Think. Good legal writing is not about following rules. Good legal writing is good judgment. Test and improve your judgment with two guidelines.
Have A Good Reason For Everything You Write.
Many attorneys stop thinking about writing after a few years. They form habits. They think they know what certain briefs should look like. They stop choosing and begin defaulting. This is a problem. Brief writing is like cooking: if you keep using the same recipe and ingredients the result doesn’t change.
Although you might not “always” or “never” write a brief a certain way, you should always have a good reason why you wrote a brief a certain way. Why did you write it this way instead of that way?
The reason may be responsive; for example, at a recent CLE the judges of the court said they find it helpful when briefs do [x]. Or it may be pragmatic; for example, the court’s rules require [y]. Or perhaps the reason comes from judgment; for example, this citation warrants a fuller multi-sentence explanation rather than a parenthetical because [z]. All fine. Just have a reason, and make it a good one.
“Because that is how it is done” or “Because that is how [name of other attorney/institution] does it” are not good reasons. Here’s why.
Consider the standard introduction to a brief: Defendants Profitable, Corp. (“Profitable”) and Not Me, Inc. (“Not Me”), (collectively “Defendants”), respectfully submit this brief in opposition to the motion filed by plaintiffs Harmed Corp. (“Harmed”) and XYZ, Inc. (“XYZ”) (collectively “Plaintiffs”), pursuant to C.R.C.P. 59(e), to amend the judgment filed herein on January 1, 2017 (“Judgment”).
I see this introduction in almost every brief. Why? You might say it identifies who wrote the document, what the document is, and the relief sought. But that’s not why authors include it. That reasoning is engineered after-the-fact. Instead people probably write this paragraph because they always have. They saw it in templates as a young attorney and they have seen it in most briefs since. So we all do it, for no reason.
This introduction is redundant with the caption. I know who the authors are, what the document is, and the relief sought because it is in giant capital letters one inch above the introduction.
Approach this introduction from a different angle. If you cut this paragraph what would happen? For starters, most readers would not notice because they reflexively glance over the paragraph anyway. It certainly would not confuse your readers. After all, you have never read an opinion that started with “This is an opinion by Chief Justice Roberts in the case of Smith v. Jones.” Level of confusion: zero. But cutting the paragraph would reduce your word count and provide a chance to hook your audience.
Although this introduction does not hurt your brief, it fails to strengthen it. It blows the opening. Liken it to comedians who open with “How is everyone doing tonight?” Wasted words, wasted time, wasted opportunity. You could have hooked your audience and you didn’t.
True, this introduction could be helpful in some cases. For example, if you represent a third party intervener, this opening could introduce the party and explain its relationship to the case. Or perhaps you use it to avoid confusion when several motions have been filed with similar titles. Use this introduction when you have a good reason.
Lastly, a few stylistic points. Many attorneys compulsively define terms with quoted phrases inside parentheticals. Stop, unless you have a good reason. Here, there is no need to define all the defendants in the case as “collectively ‘Defendants.’” Obviously the term “Defendants” refers to all the defendants in the case. Such a definition might be useful if you are referring to some, but not all, of the defendants (e.g. “the Colorado Defendants”). Similarly, you can shorten party names (“Not Me” and “XYZ”) throughout the brief without “defining” them and without any risk of confusion. Likewise, if there is only one judgment, then “Judgment” refers to it. This habit is one we think helps readers, but often causes more harm than good. It is a tool that works sometimes. Use it when you have a good reason. Don’t when you don’t. Good writing is good judgment.
Tie Your Reason to How You Will Persuade Your Audience.
A good reason is not enough because not all good reasons persuade. You must tie that reason to how it persuades your audience.
Here’s an example from real life. You decide to use your legal logical prowess and critical thinking skills to improve your family life. Good idea. So you go home, think hard and realize of course it makes far more sense for the silverware to be in this other kitchen drawer. You move everything. Bad idea. Your family will not be persuaded.
Now consider a legal example. Legal writing guru Bryan Garner advocates putting citations in footnotes. Garner cites benefits like increasing readability, exposing poor writing, and enhancing the main text discussion of authority. These are good reasons.
But do not neglect your audience. Few judges sanction this practice. Most judges despise footnotes, or at least view them skeptically. Reading a brief with dozens of footnotes will certainly breach expectations and could cause intense frustration.
Suppose you are appealing a criminal conviction. In a lengthy but carefully compelling narrative you weave together the defendant’s unique circumstances, understandable actions, and unfair treatment during the case. Then you a raise a single issue about whether the trial court erred by denying a challenge to a juror who had difficulty understanding voir dire questions and difficulty communicating. Your compelling narrative may elicit sympathy and reflect a mastery of storytelling, but your reader will likely see it as wholly divorced from the legal issue. And a judge may view it as an appeal to emotion without arguing the applicable law.
Finally, most legal writing advice assumes a single audience — the court. But practitioners often have multiple audiences, like senior attorneys and clients. Consider all of these audiences when choosing a writing strategy.
As lawyers we cannot guarantee results. But you can guarantee thoughtful writing. Avoid writing because some teacher or professor told you to write a particular way. Avoid writing because everyone else does it a particular way. Think for yourself. Have your own reason for everything you write. D
See http://cbaclelegalconnection.com/2017/09/lawless-landscape-legal-writing/ for a version of this article with additional notes and citations.
Michael Blasie is a Staff Counsel at Wheeler Trigg O’Donnell LLP and former law clerk to Judge David Richman of the Colorado Court of Appeals. After graduating from NYU Law School he worked as a commercial litigator at Cooley LLP, Reilly Pozner LLP, and Kelly & Walker LLC. He authors the chapter on appellate brief writing in the Colorado Appellate Law and Practice treatise, and a monthly legal writing blog for the Colorado Bar Association’s Legal Connection. When not practicing law, he enjoys being a volunteer firefighter for the City of Golden.