First Year Legal Writing Revisited
In the short number of years that I have been an attorney, I’ve seen a lot of briefs and motions that are somewhat embarrassing. The most embarrassing are those who do not use spell check or even bother to proof read – or have a secretary proof read – what they have written for typos. What you write and how you write it is important – to you and your client – because it may be the only information that a judge with a voluminous caseload has to make a decision.
In an article that appeared in The Legal Intelligencer on February 11, 2002, appellate attorney Howard J. Bashman provided tips on how to become a better writer:
1) Read decisions written by appellate judges who are excellent writers. Bashman recommended 7th Circuit Judges Richard A. Posner, Frank H. Easterbrook and Terence T. Evans.
2) Read high quality appellate briefs written by other attorneys. One place to find good examples is the Office of the Solicitor General of the United States— the federal government’s lawyer in the U.S. Supreme Court.
3) Keep your appellate briefs straightforward, short and easy to understand. Write in plain language while remembering to write so that someone who knows nothing about the facts, procedural circumstances or governing law can understand what is at stake. Omit facts, procedural developments and legal arguments that are irrelevant to the issues on appeal. Do not over exaggerate or aggressively attack another party or judge in a brief.
4) Write in a way that makes complex concepts understandable to someone who may be confronting the matter for the first time. If possible, have another attorney who has not worked on the case read your brief to see if it is easily understandable and persuasive.
5) Do not forget to persuasively frame the issues. Bashman asserts that all questions should present an answer. He notes that “Whether the district court’s grant of summary judgment should be reversed?” does not indicate how the question should be resolved. “To prevail on a claim for negligence, a plaintiff must prove damages flowing from the alleged breach of duty. Given plaintiff’s concession that the alleged breach of duty caused no damages, did the trial court properly enter summary judgment for the defendant?” is more effective.
6) Do not give the court a reason to think your brief is sloppy: Check and recheck all citations. Use spell check and proof read your brief for grammatical mistakes and typos before filing. Make sure that the brief looks appealing and easy to read.
Whether you practice in state or federal court on the trial or appellate level, constantly seeking to improve your writing is good practice.