Brevity key to effective brief writing

By Jane Pribek
Wisconsin Law Journal

May 31, 2006

DON'T Use 30-word titles Write a statement of the case that doesn't tell the reader what lies ahead. Confuse the standard of review, such as: “The trial court erred in erroneously exercising its discretion by finding facts which were contrary to the evidence.” Argue with incivility, such as: “My opponent’s remarkable proposition is …,” DO Avoid excessively wordy titles and headings. Write a statement of the case that gives only the critical facts as well as the legal terms of art that the reader is about to encounter. Give, and apply, the correct standard of review as your starting point in discussing the legal principles guiding the case’s disposition. State the obvious, such as: “Although the convicted murderer only received two months’ probation, surprisingly, he moved for reconsideration.” By anyone’s standards, it would be surprising.

No judge has ever thrown a brief down in disgust and exclaimed, “This brief is too damn clear!”

So says Ron Hofer, district staff attorney for District II of the Wisconsin Court of Appeals in Waukesha.

Hofer, and one of the judges for whom he works, Judge Richard S. Brown, spend the bulk of their days reading appellate briefs, and have done so many years now. In addition, Hofer is a frequent speaker at judicial education programs on legal writing, as well as an adjunct professor at Mar-quette University Law School, teaching a course on legal writing.

As for Milwaukee County Circuit Court Judge John Franke, he is a 15-year veteran jurist who has served in every division of the Milwaukee courts, sans probate and small claims. He, too, has read many a brief during his tenure, and has penned many a decision (many of which he faithfully submits to the Wisconsin Law Journal for summary publication).

Their experience has led them to become connoisseurs of fine written advocacy. Here are their suggestions for writing better briefs.

Begin an appellate brief with a “statement of the case” that gives the reader the key facts and law, and tells the reader where you're headed.

The typical “statement of the case” often is not helpful to the reader, Hofer contends. They tend to turn into a recitation of the entire procedural history, or they contain too many facts for which the reader has no context.

“There’s often a disconnect. People will correctly state the standard of review, and then talk about the issues as if they were under a different standard.” Hon. Richard S. Brown Wisconsin Court Of Appeals

Ideally, the statement of the case should ground the reader in what lies ahead, in anywhere from one to three sentences. It will likely take on several iterations as you progress with the brief; committing your thought patterns to words on paper can make you change directions from time to time.

Make your brief reader-friendly.

Excessively wordy and obtuse titles and headings do not make it easier for the reader to understand the point you're about to make, says Franke.

“Don't put everything in the title in an attempt to make it simple, because then it's not simple,” he says. “If you need to explain more about whose brief it is, and whom it's responding to, then you do that in the introductory paragraph.”

Along these lines, pay attention to the headings, so that there's uniformity among them, urges Franke. Then the reader can use them to go back and find specific information.

Further, a table of contents is helpful for trial briefs over 20 pages long. In the alternative, for shorter briefs, simply outlining the points about to be made in the introduction can serve the same purpose: to give the reader a map.

Do tell your client's story, but skip the irrelevant facts.

On one hand, says Hofer, many briefs do not offer enough facts.

“I think what happens is, when the lawyer is ready to write an appellate brief, he or she is the world's foremost authority on both the facts and the law of that case.

What the writer forgets is that the reader is coming to the case cold.

“If there's one message that I send to lawyers and students alike, it's to remember that their reader hasn't seen the case until he picks up the briefs.”

“Don’t plod through seven arguments, hiding the one good one within the six bad ones. Just lose the bad ones altogether.” Hon. John Franke Milwaukee County Circuit Court

On the other hand, too many facts are not helpful, either. Hofer says to think about it as if you were writing a hypothetical for a law school exam, where every fact has significance, or the professor would not have included it in the question.

State and apply the correct standard of review in an appellate brief.

The standard of review drives the court's entire decision-making process, Brown reminds.

“There's often a disconnect. People will correctly state the standard of review, and then talk about the issues as if they were under a different standard. Or conversely, they incorrectly state the standard of review, and then discuss them under the correct standard,” he says.

“I know there's a problem when the brief tells me that we're to engage in de novo review, and then spends page after page telling me about why the trial court's factual findings were wrong and her client's testimony was more credible. I read that and think, ‘How am I supposed to find the lawyer credible, much less the client?”

Be thorough when laying out the legal standards.

Remember that most Wisconsin trial courts, and the appellate courts, are courts of general jurisdiction run by judges who are generalists in the law, says Hofer. It's OK to “lay it out in ducks and bunnies.”

However, short cuts are appropriate when stating the applicable law in certain matters.

The standards for ineffective assistance of counsel or summary judgment can be handled in one brief paragraph, agree Hofer and Brown. The same is true for cases presenting the issues of sufficiency, of the evidence, or the trial court's exercise of sentencing discretion.

Highlight the best arguments; lose the worst.

“Don't plod through seven arguments, hiding the one good one within the six bad ones. Just lose the bad ones altogether,” advises Franke. “Or, if you feel you have to include an argument — you never know what might prevail, or you want to create the sense that there are multiple reasons to get the relief you're asking for — at least organize it so the reader can tell which are your best arguments. Make it clear what you're really promoting, and the reader can easily find his or her way back to the good arguments.”

Longer is rarely better.

There are few 25-page briefs that wouldn't have been better in 20, 15 or even 10 pages, says Franke.

Brown speaks of an excessively lengthy letter written by French mathematician Blaise Pascal, where he concluded by saying, “I have made this [letter] longer, because I have not had the time to make it shorter.”

Along these lines, Hofer points to the expedited appeals track in the rules. In his opinion, many times those briefs are “every bit as good, if not better, than when attorneys are given free rein.”

Brown adds that there are three of four well-known “stream of consciousnes” appellate litigators within his district. It's nothing short of excruciating to read their briefs, and when a panel meets to decide their cases, it's not uncommon for all three judges to have three very disparate views about what they're trying to communicate in their briefs.

The “stream of consciousness” attorneys need co-counsel to edit their work, and/or to refrain from dictating their briefs.

Hofer says, “I know when a brief has been dictated because there is a different cadence to speech than there is to the written word. It's going to be a lot longer when you talk it, and there's excessive repetition.”

He hearkens back to a brief he read several years ago, which set out a black-letter rule of law, followed by a set of parenthesis which stated, “Helen, find a cite for this.” The task must have slipped Helen's mind. Then again, Helen's name wasn't on the brief.

Be accurate, both factually and legally.

“I don't see this often, but I'm still very troubled by the extent to which some briefs do not speak honestly,” says Franke. He is referring to briefs that misrepresent the facts, or cite a case as being directly on point when it's not. Zealous advocacy does not mean stretching the facts or the law to suit your needs.

Brown and Hofer agree that this is not a widespread practice, but when they do come across it, “It brings a halt to everything.”

Don't forget to apply the facts to the law.

Put it together for the court, urges Hofer. Demonstrate that your case falls under the rubrics you've given. When you go on for too long about the legal standards, sans an explanation as to how they apply to your case, it's almost as if you're expecting the reader to memorize those standards.

There is a time and a place for creativity.

Franke says, “If you have good writing skills, you shouldn't be afraid to use them, and there's far too much dry legal writing. Even in a very routine brief, I think there's room to be creative and even colorful.”

Humor and cleverness are acceptable when they do not cross the boundaries of incivility or poor taste. The test is whether it's diminishing or enhancing your persuasiveness.

Brown and Hofer disagree. Hofer says that he finds references to Gertrude Stein and/or Humpty Dumpty in an appellate brief to be obnoxious.

If you must, save that for oral argument, says Brown.

Avoid incivility.

The words “asinine” and “brainless” do not belong in a brief, emphasizes Franke.

Avoid run-ons.

There's nothing wrong with the good old-fashioned simple sentence, to Hofer's way of thinking. A complex compound sentence may well be grammatically sound, but it's of no value if the reader is left confused.

Decision Offers a Blueprint on Bad Legal Writing In re S.C., an April 7, 2006 decision from the California Court of Appeals, offers a compelling lesson on what not to do when writing a legal brief. "This is an appeal run amok," begins the opinion penned by Presiding Judge Arthur Scotland. "In 76,235 words, rambling and ranting over the opening brief's 202 pages, appellant's counsel has managed to violate rules of court; ignore standards of review; misrepresent the record; base arguments on matters not in the record on appeal; fail to support arguments with any meaningful analysis and citation to authority; unjustly challenge the integrity of the opposing party; make a contemptuous attack on the trial judge; and present claims of error in other ways that are contrary to common sense notions of effective appellate advocacy — for example, gratuitously and wrongly insulting her client's daughter (the minor in this case) by, among other things, stating the girl's developmental disabilities make her 'more akin to broccoli' and belittling her complaints of sexual molestation by characterizing them as various 'versions of her story, worthy of the Goosebumps series for children, with which to titillate her audience.'" The 46-page decision affirms a superior court ruling removing the (then) 15-year-old S.C., a teen afflicted with Downs Syndrome whose IQ is 44, from the home of the appellant, her mother. At issue in the case was whether the child's stepfather had molested her. Scotland partially faulted himself in the opinion, explaining that he took appellant's counsel, Julie Lynn Wolff, who is mentioned by name throughout it, at her word that good cause existed to allow her brief to exceed the word limit set forth in the rules. Her brief, characterized as "heavy on words but light on analysis," ultimately exceeded those limits by three times. The court will give those requests greater scrutiny in the future, he wrote. The decision concludes with a directive to forward a copy of it to the State Bar of California, presumably for professional discipline. The case is No. 06 C.D.O.S. 2909 and it is available here (PDF).

“What lawyers need to remember is, it doesn’t matter how clever they think they are, or how clear they think they are-if the reader doesn’t get it, the lawyer has failed in his or her duty,” he says — adding that the judge isn't going to call you and ask you to explain a wordy and confusing sentence. Instead, he or she will probably just skip it and hope the next one is better.

As for run-on quotes, Hofer hypothesizes that most judges just skip them, although Brown will neither confirm nor deny.

Include the trial court's decision in the appendix of the brief.

You'd be surprised how often this rule is forgotten, says Brown.

Depart from the traditional formalities with caution.

No judge will hold your informal tone against your client. But it is noticed.

Hofer says that the conventional rule is to avoid contractions, which he believes conveys the respect due to the court. But language is becoming more informal, and that's seeping into legal writing. He has also encountered more briefs that consistently say “plaintiff” rather than “the plaintiff.”

For Brown’s part, he says he recently read a brief that used contractions, along with many action words, which made it seem fast-paced and snappy. It worked in that case — but if contractions seem out of place in your brief, stick with tradition.

Brown concedes he is become more informal in his writing style. Many years ago he never would have begun a sentence with the words “and,” “but,” “since,” or “because.” Then he read a decision written by his former colleague on the appellate court, William Eich, which consistently did this. It struck him as being so clear, that he started to do it, too.

Horrors! You've split an infinitive or ended a sentence with a preposition.

Franke laments, “I feel we've lost a lot of good grammar, but I don't get upset about these things.”

As for Hofer, he is a former English teacher who is not wedded to those two particular grammar rules. He explains that the first English grammarians to memorialize them to paper back in the 18th century also knew Latin, which they had a tendency to look to for guidance. Infinitives were one word in Latin, and that language does not end sentences with prepositions. English, however, is not a romance language, but rather a Germanic language where it seems to make sense from time to time to violate these rules. Thus most English teachers today allow violating these rules "with caution.”

Avoid clichés and "trendy" words.

Franke says, “I hate the word ‘prioritize,’ or when lawyers use the word 'impact' as a verb — although I’ve given up on that one because so many people use it that way. But I know that this is the way language evolves.”

Hofer agrees. Some of his pet peeves are “bottom line,” “ongoing," “It is what it is,” and "basically."

“Clearly’ almost never refers to something that it clear. People end up using it as a persuasive conclusion,” he notes.

As for clichés, George Orwell once said, “Never use a metaphor, simile or other figure of speech which you are used to seeing in print.”

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