In an ABA Journal article titled “Dirty Dozen: 12 Ways to Write a Really Bad Brief,” Jim McElhaney writes about the “ordinary sins [of bad brief writing] that even good lawyers commit everyday.” According to Mr. McElhaney, they include:
- Make it a “long,” not a brief. There are lots of ways to make a brief too long: too many points, too many citations, too many quotations, too many words. But what many judges look for is too many pages. Some judges delight in reading only up to the page limit they’ve imposed by local rule and then stopping.
- Throw issues against the wall. Too many issues make a bad brief no matter how many—or how few—words it has.
- Flunk the giggle test. Seriously pressing a point that doesn’t pass the giggle test is deadly because it undermines your credibility.
- Commit purposeful errors. . . . Judges don’t always call lawyers on what they think may be purposeful misstatements because intent is always hard to prove. But judges talk with each other—their club is a small one.
- Make unreasonable arguments. The advocacy system is supposed to work when each side makes its strongest arguments. But “strongest” does not mean loudest, longest or most one-sided. Making the best argument you can means being reasonable, logical, fair. Concede the obvious. Not every issue has two good sides to it.
- Be bombastic. Exaggerated words go hand in hand with unreasonable arguments. . . . Here are examples of the kinds of words and phrases you should cross out on the first revision of any brief: manifestly, clearly, fatal, clear beyond peradventure, logic that is fatally flawed,egregious, contumacious, mere gossamer, must necessarily fail, totally inapposite.
- Let Mongo loose. Lambasting the trial judge, the other lawyer, the Supreme Court, Congress, the president, the governor or the state legislature is rarely necessary or even helpful in writing a brief. Even if your readers secretly agree with you, they will still disapprove of using a brief to let fly at your favorite targets.
- Lay on the legalese. Aiming for a tone of formality and respect, we almost always go too far and instead create a forest of awkward verbiage.
- Load up the citations. Lots of briefs contain lists of authorities that are two or three pages long. When you leaf through the text, you see a daunting bramble bush of quotations and case references on every page. What it says is: “Heavy reading ahead. There is nothing clear about this case. It has a lot of difficult questions that could obviously go either way.”
- Quote like crazy. . . . Quotations should be occasional gems that add sparkle to a page. Good quotes make important points in a memorable way. The problem is, good writing is hard to find in most judicial opinions, so quoting from them extensively tends to be deadly.
- Don’t analyze. Some brief writers run through statutes and case holdings well enough but never really analyze the case, discuss the issues, show how the rules apply or address the difficulties they raise.
- Tell no story. Every brief should tell the story of an injustice, a wrong that needs to be righted or avoided. The story is central to the way we process facts. It is the basic system we use to teach, to understand, to instill moral precepts and to memorialize important events. Telling an engaging story in the statement of facts and the issues they raise gives meaning to an otherwise dry assemblage of information. How you do it depends on who you are writing the brief for.
While it is important for attorneys to be aware of these brief writing pitfalls, it is also helpful for legal consumers to understand what contributes to bad brief writing and how it can impact the judges’ decisions.