Ed. Note: This article is Part Two of our five-part Writing to Persuade: An Appellate Lawyer’s Guide to Legal Writing series. Read Part One.
Last time, we covered strategies for making your legal writing more credible.
Now, let’s switch gears and turn to how to make your writing more accessible. In future installments, I’ll cover specific legal writing strategies in more detail. For now, I want to zoom out and review what makes a brief accessible at a macro level. We’ll discuss both why it’s important that your brief be accessible and I’ll supply some strategies for achieving that goal.
Before turning to the “why,” I should acknowledge that the content of a brief should always be paramount. It’s up to you to deliver technical proficiency. My goal is to supplement your technical proficiency with big-picture ideas that will improve your writing and make it easier for others, namely judges and their clerks, to understand.
A word about the importance of structure.
Most judges are generalists with crowded dockets. The federal district judge resolving your patent matter may have been a prosecutor in her former life. Or the state appellate judge resolving your domestic appeal might have been a transactional real-estate attorney before taking the bench. When you file a brief, whether in a trial or appellate court, you should keep that reality in the back of your mind. There’s a good chance that you know more about the substance of your argument than the person deciding who wins and who loses. As Professor Richard Pierce has observed, “Judges have heavy caseloads. . . . [They] have to research, analyze, and address an extraordinarily wide range of issues.” They have little time or opportunity for reflection, detailed analysis of any particular area of law, or development of special expertise in any single field.
The substantive disconnects between advocate and decisionmaker should be enough to convince you that clear legal writing is a necessity. But if it is not, consider where your case fits in with a given judge’s or court’s annual caseload. In 2024, state courts alone processed approximately 70 million filings. At the federal level, the U.S. Courts of Appeals handle thousands of appeals annually, with each judge responsible for reviewing cases across virtually every area of law. One analysis estimated that, in federal appeals, where opening briefs, opposition briefs, and reply briefs can total roughly 35,000 words in total, a judge will read about 42 million words each year, that’s nearly 50 full days of non-stop reading at a well-above-average pace of 600 words per minute.
Because your brief is just one of many, it’s important to take extra care to ensure that your brief is easy to comprehend. At a macro level, that means making sure that your argument is easy to recognize and comprehend.
From here on, we’ll talk about how to do that. I often refer to this type of structural refinement as easing the reader’s mental load. The goal is for the judge or clerk reading your writing to immediately understand and retain the most important parts of your argument.
But how do we do that? In my own opinion, every section of your brief should independently advance your argument. A judge should be able to read your introduction, summary of the argument, or the roadmap at the beginning of each argument section and understand where you either the brief as a whole, or the individual section, is taking them and why it’s important.
Start with the Table of Contents
Persuasion starts long before the judge digs into the substance of your brief or reviews the record. The table of contents often serves as the first word in any appeal: Judges review the table of contents not only to see how long your argument is, but also to figure out what it’s about and what are the issues that are at play.
Most lawyers treat tables of contents as a required formality. It took me years to appreciate what a well-written table of contents can do for you. To make the most out of your table of contents, each heading should convey the main points of your argument in clear, declarative sentences that work together to tell your story.
Compare the difference between a generic heading versus a persuasive heading in a breach of contract case:
Generic Table of Contents
I. Statement of the Case
II. Standard of Review
III. Argument
A. Contract Formation
B. Breach
C. Damages
IV. Conclusion
Persuasive Table of Contents
I. Statement of the Case: Defendant breached a written purchase agreement after accepting $50,000 in earnest money.
II. Standard of Review: Summary judgment is reviewed de novo, and no genuine dispute of material fact exists here.
III. Argument
A. The parties formed a valid contract when defendant signed the purchase agreement on March 15, 2024.
B. Defendant breached the contract by refusing to convey title after all conditions precedent were satisfied.
C. Plaintiff is entitled to $150,000 in damages, representing the difference between contract price and fair market value.
IV. Conclusion: The Court should grant summary judgment and award Plaintiff $150,000 plus costs.
Notice how the second table of contents tells a complete story. A judge scanning those headings immediately understands the case: what happened, what legal standards apply, and what relief the plaintiff seeks. The generic version, by contrast, reveals nothing about the substance of your arguments.
Structure your arguments logically.
In many cases, “structure your arguments logically” is an easy enough command to follow. But in some appeals, especially those with multiple attorneys working on a single brief, there can be disagreement about which arguments to make and where.
Think back to law school. Certainly, your legal writing professor told you that you should always start with your strongest argument. That advice is great, so far as it goes. In my own mind, my strongest argument was the one that I was most likely to win. But that’s not always true. Sometimes, like in a criminal appeal, for example, your strongest argument might get your client a resentencing. That’s great, but not if your client had a colorable argument that might have resulted in an acquittal or a new trial.
When I talk to newer legal writers, I often tell them that they should brief the best and most consequential argument first, meaning the strongest argument that also gets the client the relief they most desire. Consider what happens then in an appeal following a civil trial. Even if you are sure that the jury miscalculated the damages, there are other issues that you might want to address first: Is the plaintiff’s legal theory sound? Was the evidence sufficient to support the jury’s verdict? Did the jury do something improper that merits a retrial? If you start your brief arguing about damages, jumping to another argument that logically precedes your damages argument will distract your reader.
There is, of course, one caveat to this. If you are the appellee, or if you are the non-movant in the trial court, your brief should generally track your opponent’s unless you have a good reason to deviate. Those good reasons might include jurisdictional arguments or, in an appellate court, waiver.
That said, following your opponent’s outline does not mean simply rebutting their assertions. Topically, yes, you should follow your opponent’s structure. But you should not simply move through their arguments. Instead, build your own affirmative case first, then explain why your opponent’s contrary argument is wrong. For example, assume that you’re opposing summary judgment in a trademark case. The defendant’s brief argues that there is no likelihood of confusion and addresses each of the multiple factors at issue. In your response, you could poke holes through the defendant’s arguments, or you could build your own comprehensive theory of why your case survives summary judgment. Poking holes works in some instances. But it’s much easier for the court to rule in your favor when it understands how you view the evidence and how the evidence fits into the legal framework that underlies your case.
Conclusion
Those are two tips that will help you structure your brief to ease your reader’s mental load. Making your table of contents more accessible is a great way to give your reader an overall understanding of your case and argument. And structuring your arguments logically eases the uncertainty that comes with addressing things in an unorthodox order.
