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The Secret Ambition of Every Brief

While researching something completely unrelated, I came upon a brief article by Justice Maria Rivera (First District Court of Appeal, Div. 4, CA) regarding writing briefs for appeals entitled: The Ten Commandments of Brief Writing. Before delving into the “Ten Commandments”, Justice Rivera leads off with the following quote from Mortimer Levitan from the article, “Confidential Chat on the Craft of Briefing.” Journal of Appellate Practice and Process, Vol. 4, No. 1 (Spring 2002):

The secret ambition of every brief should be to spare the judge the necessity of engaging in any work, mental or physical.

My gut reaction is: why should that be the secret ambition? I presume that to be the overriding goal of effective persuasive communication. Writing something so compelling and convincing that it alleviates the reader from any doubt or questions they might have. We should all count ourselves lucky to be able to craft such a brief.

I’ve stripped the commentary away and list the Ten Commandments below (For Justice Rivera’s commentary, read the whole thing):

  1. This is the first, and the greatest commandment: Be scrupulously honest in describing both the law and the facts.
  2. Know your judge(s). (Ed.: Know your audience)
  3. Never use ridicule or sarcasm.
  4. Avoid attempts at humor.
  5. Be a good storyteller.
  6. Use two kinds of arguments: those that persuade and those that support.
  7. Base your persuasive arguments in the facts.
  8. Embrace—do not duck—the weaknesses in your case.
  9. Write from an outline.
  10. Take the time to read good writing.

A few comments:

I’m always rather flabbergasted when I read an appellate brief wherein its apparent that counsel is playing fast and loose with the case. FYI – the judges and their law clerks have seen it all before and are likely smarter than you and more experienced. Not being totally on the up and up is just going to tick them off.

I disagree regarding humor. I think a good writer can use humor sparingly and have it be effective. The trick: most people aren’t good writers.

Absolutely embrace weakness. Take the most vulnerable and fragile aspects of your case and expose and justify them in your writing – opposing counsel is certainly going to do so. This ties into Commandment number 1. Judges will recognize it and appreciate your forthrightness.

Good storytelling goes along with reading good writing. If all you ever read is legal memorandum then you’re probably not going to produce good writing. Read substantial novels and publications like the Economist. Expose yourself to different methods of “everyday” writing. Your writing will be better for it.

If you’re looking for more nuts n’ bolts improvements see my recent post, 11 Writing Blogs I Follow or other posts in my Writing category.

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About Keith Lee

I'm the founder and editor of Associate's Mind. I like to write, talk, and think about law, professional development, technology, and whatever else floats my boat. I practice law in Birmingham, AL.
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