By Eliot T. Tracz
Brief writing is a critical skill for lawyers. Motions are won or lost on the strength of a brief, yet many briefs miss important opportunities to persuade the court to rule favorably. While legal support and strength of analysis are the most important aspects of any brief, a close case may hinge on your ability to interest the judge in the outcome of your case. Here are three simple yet effective techniques that can substantially raise the quality and effectiveness of your brief.
1. Set the table
An important aspect of writing—whether fiction, academic, or legal—is connecting with your reader. In the legal context, you want to make that connection with a judicial officer (and their law clerk) early on in your brief. One way to do this is to include a brief background section about the party you represent. This is particularly useful if your client is a business or a nonprofit, rather than a person.
The simplest way to do this is to use facts about your client that are not legally significant to your case, but serve the purpose of eliciting an emotional response.1 Imagine you represent a client, Bland’s Men’s Wear, whose doors opened in 1945. Since then, three generations of Blands (Arthur, John, and William) have run the store. Your cases arises from a fire caused by faulty wiring. The background statement might look like this:
Immediately following the end of World War II, Arthur Bland realized his dream of opening his own haberdashery, Bland’s Men’s Wear. He sold fine men’s attire at affordable prices, and prospered as a result. For the last 75 years, three generations of Blands continued the tradition of selling fine men’s clothing at reasonable prices, until a fire closed their doors forever.
This statement packs a punch for several reasons. First, Bland’s is no longer just an anonymous business, it’s an institution whose story begins with its birth and ends with its untimely death. Second, Bland’s story isn’t just about a fire; it’s a story of pluck and perseverance, rebirth after war, and three generations of a family’s work destroyed by an act of negligence. You’ve already generated empathy for your client’s loss and haven’t even reached the legally significant facts of your case.
2. Persuasion starts in your statement of facts
The persuasive element of your brief begins with your statement of facts, not with your analysis. Lawyers are often called upon to be storytellers, and the statement of facts is first the opportunity to shape the narrative of your case. A compelling story—one that gets the reader emotionally invested in the fate of the protagonist—is one in which the facts of the case are woven together in such a way that your desired resolution seems only natural.
Unfortunately, writers frequently fail to seize this opportunity. Often, instead of using the statement of facts to weave a story, an attorney will simply use the section as a dumping ground for all facts, relevant or not. Sometimes the facts are in chronological order, but the legally determinative facts are clustered with irrelevant material. There are few if any bridging devices. This leaves the presentation cluttered and rushed. There is no reason not to put the time and effort into crafting a statement of facts that hooks your reader.
On other occasions, writers use numbered paragraphs in the statement of facts. This often occurs in cases where multiple parties present converging fact patterns. While this approach may contain the legally determinative facts, in chronological order, and suggestive of a preferred legal outcome, it is more akin to reading a shopping list than a statement of facts. If your case (a car accident, let’s say, featuring a drunk driver) has multiple parties all converging at one point, tell the story of the first party, then use a bridging phrase to show parallel timelines: “While the Smith family celebrated their daughter’s engagement, the Defendant, Mr. Jones was downtown at his favorite bar.” This can be used to turn multiple timelines into a compelling story that supports your client’s claim.
3. Coordinate ideas, coordinate terms
Finally, effective sentence structure can elevate a brief. One of the most important rhetorical tools in the writer’s toolkit is a technique called parallel structure. Parallel structure is the “use of words, phrases, or clauses of similar form and length.”2 One familiar example comes from Dr. Seuss: “I would not like them here or there. I would not like them anywhere. I do not like green eggs and ham. I do not like them, Sam-I-Am.”3 This earworm owes its appeal to parallel structure.
Parallel structure is particularly effective in conveying analogous reasoning. Consider the following, taken from a classroom example:
Like the appellants in Bruce who demonstrated the driver’s obvious intoxication through circumstantial evidence such as the driver’s BAC being above the legal limit, the driver and appellant having had the same number of drinks, and the driver attempting to use coins to start her vehicle, Ms. Delacruz can demonstrate that Grace was obviously intoxicated through circumstantial evidence such as Grace’s BAC being above the legal limit, Ms. Delacruz and Grace having had the same number of drinks, and Grace having difficulty trying to start her vehicle.
This sentence illustrates, rather than explains, why precedent requires the court to rule in Ms. Delacruz’s favor.
Parallel structure is also effective as a tool for oral argument. If you want to emphasize an important point, parallel structure is the way to go. For example:
On three occasions, Mr. Smith was referred to management for his behavior. On three occasions, Mr. Smith received formal reprimands and remedial training. And on three occasions, Mr. Smith refused to adjust his behavior.
Here, parallel structure effectively demonstrates Mr. Smith’s repeated transgressions.
Conclusion
Effectively implementing these suggestions requires careful thought, planning, and sufficient time. The extra effort is worth it, because a hastily written brief is often less persuasive than a carefully planned, well-written brief. Using these tools to spruce up your writing can raise your brief from “good enough” to “compelling,” and a compelling argument is hard to reject.
ELIOT T. TRACZ is a litigation associate at Dunlap & Seeger, P.A., former judicial clerk, and adjunct professor at Mitchell Hamline School of Law.
NOTES
1 For a good discussion of the three types of facts—legally significant, background, and emotional—see Christine Coughlin et al, A Lawyer Writes 246-47 (3d ed. 2018).
2 Ross Guberman, Point Made: How to Write Like the Nation’s Top Advocates, Oxford University Press (2d ed. 2014).
3 Dr. Seuss, Green Eggs and Ham (1960).