Some Random Thoughts on Brief Writing

• Publication year: 2003
• Pages: 29
• Citation: Vol. 32 No. 1 Pg. 29

32 Colo.Law. 29 Colorado Lawyer 2003.

2003, January, Pg. 29. Some Random Thoughts On Brief Writing

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29

Vol. 32, No. 1, Pg. 29

The Colorado Lawyer
January 2003
Vol. 32, No. 1 [Page 29]

Departments
Judges' Corner
Some Random Thoughts On Brief Writing
by Robert J. Kapelke

Robert J. Kapelke is a Judge with the Colorado Court of Appeals

Yale Professor Fred Rodell once put it quite nicely "There are two things wrong with almost all legal writing. One is its style. The other is its content." There it is in a nutshell

As for the style issue, part of our problem is that we remain mired in the Middle Ages. Even today, lawyers and judges draft court orders stating, "THE COURT DOTH HEREBY DECREE." "Doth"? Which court is that, by the way - the court of Henry VIII?

Here is a remarkable nugget of legalese that actually found its way into a Colorado appellate brief: "At a point in time immediately subsequent to the termination of the aforesaid altercation on the above described premises, the defendant-appellant removed himself from the aforementioned locus and repaired to a situs on the premises immediately adjacent thereto." A plain English translation of that sentence comes out something like this: "After the fight, defendant went next door."

A tip to the appellate brief writer is simply to "write with your ear." Read your draft aloud to yourself or at least read it through in your mind. If neither you nor any anyone you know would ever utter a sentence like the one you have written, head back to the drawing board. Some of the most effective brief writing is simply straightforward and conversational.

Say It Short and Sweet

Most appellate and trial judges favor briefs that are concise and precise - short and to the point. A direct style better persuades and holds the reader's attention than the discursive ramble. By the same token, the citation of a case or two directly on point clinches an argument more readily than a full page of string cites to cases barely in the ballpark. The judges will read each word of the key authorities, but the chances of their devouring the entire fruit of your exhaustive research are not as great. The law clerk is more likely to draw that assignment.

Tell Us a Tale

Good storytelling is a sound technique in brief writing, as in oral advocacy. Sometimes, the story can be captured in a few evocative words. Here...