Ed. Note: This article is Part Four of our five-part Writing to Persuade: An Appellate Lawyer’s Guide to Legal Writing series. Read Part One, Part Two, and Part Three.
Over my last three columns, we’ve discussed the importance of credibility, structuring your brief at a macro level, and structuring your arguments using topic sentences.
In this edition, I want to touch on specific tips that will improve your legal writing and make your argument overall easier to understand.
Before diving into these specific tips, bear two things in mind. The first is that these are generalizations that, in certain cases, can be ignored without consequence. That said, I try to stand by these principles in almost every case. And second, consider why I’m offering these tips: Judges are busy, and as an advocate, it is your job to lighten their cognitive load and improve understanding.
First, drop the legalese. Lawyers love dense, Latin words: ipse dixit, arguendo, a fortiori. If you want your writing to be clearer, break up with them. Sure, it’s common to cite Latin in, for example, a standard of review section (think “de novo”). But there’s just about no other reason to use Latin when simpler, shorter, everyday words will do the job.
Of course, when I say legalese, I don’t just mean Latin words. Legal writing is full of heavy, multi-syllable words that most of us would never consider using in our everyday lives. Recently, I was writing a brief in a trademark appeal and, after summarizing my client’s evidence of actual confusion, started the next sentence with “Even if such confusion…” That’s certainly easier to write than a bespoke sentence in a way that conveys the right message and avoids repetition. But phrases like “such” can become confusing when they’re read quickly. Err on the side of replacing them.
Second, and relatedly, get rid of the word “however.” I review draft briefs almost every day, and I find myself constantly editing the word “however” out when used at the beginning of a sentence. If you’re using however in that way, to highlight a contrast, you really should be using “but.” Does replacing “however” with “but” cause your sentence to lose its meaning? Chances are, you need to rewrite the sentence.
Third, the court does not know your case, or your area of expertise, as well as you do. Sure, there are some specialized courts that focus on, for example, patent appeals or tax cases. But more often than not, when you show up in court, you appear before a generalist.
From my own experience while clerking, many attorneys are guilty of assuming that their generalist judge knows the intricacies of trademark law, constitutional law, or any other substantive area of the law as well as they do. That isn’t true. And if you make that assumption, you risk losing your audience.
When you’re writing for a court, introduce legal concepts at a general level. It doesn’t take much. For example, in a trademark infringement case, you need not set out the purpose of trademark protection, each element of trademark infringement, and the multiple factors that courts consider when analyzing likelihood of confusion. Instead, it’s sufficient to identify the relevant factor, likelihood of confusion, and to highlight only those factors at issue. Once you orient the court to the relevant legal principles, continue to do so before discussing each separate factor.
Here’s another example from my actual practice. I’m working on a tax appeal right now. The dispute is actually pretty discrete: is a beneficiary of a trust entitled to take a certain deduction, or is the trust the only taxpayer that can claim the deduction? That’s straightforward enough, but there’s so much context that the court will need to understand before resolving the matter: What’s the basis for the deduction at the federal level? How does North Carolina treat the deduction? The list goes on. If I left the court with nothing but the basics of trust taxation, it wouldn’t be enough information to resolve the case. Nor can I assume that the court understands the underlying tax scheme. It’s on me to explain it.
Fourth, preserve just enough and cut what doesn’t matter. Lawyers like to use legalese, but they also like to overexplain things. I edited a brief recently that discussed a statute governing how partnership property was distributed upon the dissolution of a partnership. The statute itself is full of nuance, which the draft explained very well. There was just one problem: none of the nuances mattered. We were, instead, arguing that the statute was inapplicable.
It’s often tempting to overexplain as a way of either showing the court your competence or ensuring that your brief is an “appropriate” length. But you demonstrate your competence by being succinct yet accurate, and a word limit is not a minimum requirement.
Think about other places where the risk of saying too much might come up. The first place that jumps to my mind is the standard of review section in an appellate brief. Assume, for example, that you’re appealing a district court decision granting your opponent’s motion for summary judgment. The Federal Rules of Appellate Procedure require that you explain the standard of review, but you shouldn’t waste words on it. In some cases, I’ve seen attorneys devote a page or more to explaining the standard of review, including explaining to the court the mechanics of summary judgment. Don’t. You can assume that the court understands that a decision granting summary judgment is reviewed de novo. Say what you must, then move on.
Fifth, assume the judge will skim. I’ve probably said this in every article, but it’s a truth you should internalize. Write your headings so that someone who only reads the bold text still gets the gist. Put your best arguments first. If your strongest point is buried on page fifteen, the judge might never get there. In the past, I’ve written about the importance of understanding so-called “F-pattern” reading, meaning that a judge will read your thesis sentence and, basically, scan down the left side of the paragraph to determine whether anything jumps out at him or her. If you’ve got a critical point, don’t hide it.
Finally, don’t ignore the other side’s best arguments. If you’re the appellant, or if you’re the party moving for dispositive relief in the trial court, lean into your opponent’s best argument.
This is, candidly, easier to do on appeal. By that point, all the cards are (or should be) on the table. You know what your opponent argued below, you’ve responded to it, and the trial court rejected your argument. You should go ahead and address that argument to get it out of the way. Doing so puts your opponent on their heels, makes them use words to bolster their argument in their response, and gives you the chance to use your reply brief strategically, addressing only the strongest part of their response.
While this is easier on appeal, it’s also something you should consider doing in the trial court. Sometimes, your opponent will have kept his or her theory of the case close to the vest. But if you’ve lived with the case, and especially if you’ve made it through discovery, you should be able to understand your opponent’s strongest arguments. Go ahead and address them. It signals confidence and shows that you do not shy away from tough distinctions.
