Byron P. answered • 08/13/21
LAW SCHOOL AND BAR EXAM TUTORING WITH REMARKABLE EXAM TECHNIQUES
I am not providing legal advice, just some legal writing instructor tips. No fiduciary relationship is created. My pointers are for a general audience with some prior experience in persuasive legal writing.
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If you want an excellent jump-start, order the treatise "The Winning Brief" by Brian Garner (inexpensive on Amazon). Brian is the Editor in Chief of Black's Law Dictionary and has written legal writing treatises with deceased Justice Scalia and Justice Gorsuch. The 2nd edition will more than meet your needs. Also, go to Garner's website and sign up for his weekly no charge legal writing newsletter, named "Lawprose.com". Many consider Garner the finest legal writer in the nation.
> You should also review these legal writing sources:
(1) Cornell Legal Education (Legal Writing) Website: https://www.law.cornell.edu/wex/legal_writing
( 2) ABA- Ten Tips for Better Writing at: https://www.americanbar.org/news/abanews/publications/youraba/2019/april-2019/10-tips-from-legal-writing-experts/
(3) "Legal Writing: A Judge's Perspective on the Science and Rhetoric of the Written Word"
By Robert E Bacharach (Expensive on Amazon).
If I were to prioritize briefing skills I would likely choose from the following:
(1) Active Voice, Active Voice, Active Voice!
(2) No matter how mundane the subject, you can make it exciting and emotive-- tug on the judge's or panel's heartstrings. Tell a story! Notice that in modern times Presidents, in their annual address to Congress, point out guests they have brought to the Capital and then give their guests' back-stories. If this works for Presidents, it should work for you! You will have humanized the matters discussed in your Brief.
(3) Thus, you must start your Brief with an explosion that will grab your audiences' attention and keep them glued to their seats as you proceed. Your overall theme should be presented at the beginning of your Brief and then your conclusion should tie back to your initial theme. Most throw away the opportunity provided by a well-organized Conclusion. Get away from saying such things as "Based on the foregoing, the Plaintiff requests money damages". Everyone's falling asleep by this point.
(4) The difference between objective and persuasive writing: Of course, Briefs are persuasive writing. Here, be sure you understand the word "Rhetoric"- developed by Socrates on the shoulders of Plato.
(5) Your Brief must be thoroughly organized using one of the standard formats (IRAC, CRAC, CREAC). I prefer (F)IRAC where "F" equals "Facts" (and perhaps the Statement of the Case). No one can spot issues (i.e. spot "trigger words" that are legally consequential) or figure out the Law if they don't know the facts. And remember the adage- If the Law is not on your side, argue the facts and if the facts are against you, argue the Law.
(6) Your Brief must scrupulously obey the formatting, spacing, word count, font style, font size, and certifications in operation in the jurisdiction in which you will be "hypothetically" filing your brief.
(7) Remember that a great appellate attorney can write a Brief in one day, but then he and his/her associates will take an additional 2 weeks to get it organized, emotive in tone, persuasive, and completely researched. Some writers say "do the research first and then write the brief". After you have more career experiences under your belt, you will, in several instances, be able to write the brief first without research and then have your Associates add (fill in) supporting cases and other authorities.
(8) Never overlook the Statement of the Case. The manner in which a case got to the Court is often dispositive. The Court will not consider appeals that seek an advisory opinion (not to be confused with a declaratory judgment), ones not yet ripe, appeals that are moot, or those that address touchy subjects- such as appeals involving political questions.
(9) In writing your Brief never forget that the findings of fact of the lower tribunal come to the appellate court with a virtually insurmountable presumption of correctness (the trial judge was looking deep into the defendant's eyes in assessing credibility) while all legal issues come to an appellate court de novo.
(10) Spend a great deal of time shortening your Brief. This will force you to rid yourself of issues or words that are not germane to anything. It will also force you to write in plain English.
(8) Avoid Latin. Use plain English. The overwhelming trend is to distance the courts from Latin, though there are professors that are mentally entrenched in the old ways, and may still think to themselves "when addressing a legal issue, why use an easily understood English term or word when a foggy and archaic Latin term will do?".
(9) As with Oral Argument, your Brief must be a friendly conversation between you and the Bench.
(10) The Introduction to your Brief can make your case or break it. Again, think of your audience... they should be able to rule based on your Introduction alone.
(11) Many states have their own citation rules and don't follow the Blue Book. Be careful.
(12) Don't use any acronyms- even the most commonly known ones. You don't get extra points for using acronyms and your audience may not understand even the simplest of the lot. I call this "risk avoidance”... always think what might go wrong and, with advance planning, try to prevent the risk from ever arising.
(13) Do your absolute best to avoid string cites.
(14) Use only a few references to the Record ("R") or your audience will not focus on the core of your argument. Use enough references to the Record to show you understand your case, without overwhelming the panel or their clerks.
(15) Many legal writers frown on footnotes. If used infrequently, I think they can be quite useful.
(16) Everything you write must be scrupulously honest and correct. One mistake on one important point may cause the panel to view all your work with suspicion and mistrust. Your client will be none too happy.
