Confidential chat on the craft of briefing.

• Author: Levitan, Mortimer

This chat on the craft of briefing is intended solely for discreet lawyers who invariably respect confidences. It was prepared for publication only after repeated assurances by the editors that judges never read law reviews. Whether this is good or bad, true or false, judges will benefit most from this article if they remain unaware of its contents.

What briefs need most in this world is readability. (1) Briefs should also be convincing, if possible, but unless they are read by somebody, they won't convince anybody of anything--except their writers, of course. Briefs have a knack of convincing their writers with the utmost of ease. Cases are not won by persuading one's self of the soundness of an argument; they are won by convincing judges--not courts, not benches, not institutions, but lawyers who have been elevated to the judiciary.

Courts cannot read. With perseverance human beings can acquire the art of reading, but institutions, organizations, divisions of government can never be endowed with that art--not even by an act of Congress. Judges, who are human beings by nature, lawyers by profession and judges by fortuity, can read and frequently do, but with all of the fascinating reading material on earth, why should they squander their reading time on briefs that are dull, obfuscated, verbose, and downright uninteresting besides? The fact that so many briefs get read is a tribute to pertinacious adherence to judicial sense of duty. When a brief is filed, it is not fed into a judicial machine, which comprehends, weighs, and evaluates automatically, and then after whirling of wheels and flashing of lights--and occasionally prolonged periods of inactivity--ejects the correct answer. When a brief is filed, it is for consideration by a man (or, possibly, a woman); which means that briefs must be addressed, not only to a human intelligence, but also to human nature.

No brief should ever be written without some definite purpose in mind. Neither convention nor addiction is justification for a brief: the conformist should rebel, and the brief-writing addict should seek psychiatric aid. There are a variety of purposes--some commendable, some reprehensible--for writing briefs. It is reprehensible, for instance, to write a brief primarily to express an uncomplimentary opinion of one's adversary; it is commendatory to write a brief for the purpose of advising the court; it is neither reprehensible nor commendatory to write a brief because the client insists--merely good business. The most exemplary purpose of a brief is to assist the court in deciding the controversy either for or against one's client, but preferably in the client's favor.

The lawyer who writes a brief without a preliminary outline would if he were a carpenter, build an edifice without a plan. True, by persistently pounding away eventually a written argument might emerge, and a shelter might evolve, but the finished product would probably be bizarre rather than artistic. Briefs dictated without preliminary outlines tend to be garrulous monologues in which the lawyer strives to ascertain the determinative issues by the "talking" method, rather than the "thinking and investigating" method. The most meritorious aspect of these briefs is that they do come to an end eventually; their worst aspect is that they end where they should have started. While time spent in briefing may be wasted, time spent in outlining a brief is never wasted, for a skillfully prepared outline invariably engenders a shorter, clearer, better brief.

The effective production of a brief depends, not only on a knowledge of the law and facts involved, but also on familiarity with the background, disposition, and intellectual endowments of the judge. Different types of judges require different types of briefs; which is merely another way of saying that a brief to be effective must be written with the reader in mind. A short story intended for readers of True Confessions must be written differently from one intended for readers of Harper's Magazine. In briefing, as in short story writing, effectiveness depends upon pleasing or impressing the selected audience.

There are certain mechanical features that should characterize all briefs, regardless of the identity of the judicial target. For instance, black black ribbons (2) should be used for typing, not ribbons that have been pounded into pearl gray. The days or even months spent in legal research, cogitation, and dictation can be wasted by one anemic typewriter ribbon. A brief may tax or insult a judge's intelligence, but when it impairs judicial optic nerves the sensible judge stops reading and says--well, just what do judges say when they vehemently conclude that something should be consigned to a place noted for its caloric climate? (3)

There are a number of other physical characteristics of briefs that decoy judges into reading. A weighty brief--one fattened beyond the capacity of a postal scale--might get hefted, might get opened, might even get a despairing leafing through, but it won't get word-by-word perusal. Slender briefs have infinitely more allure than the obese type, and especially if well-proportioned--svelte, with emphasis supplied in just the right places. Judges, like other human beings in this radio and television age, are more likely to peruse an article in Readers Digest than wade through War and Peace.

The paper chosen for the honor of being immortalized with the words of the brief should have sufficient opaqueness so chat each typed page will not look like a double exposure. It is difficult for a judge to concentrate on the argument presented on one page when distracted by the argument peering through from the following page. There is, of course, little objection to using diaphanous paper for the copies to be presented to opposing counsel, because the chances of discovery are slight. (4)

The effectiveness of an argument may be accentuated or dissipated by the mode of presentation. An unshaved, dirty-collared, baggy-suited salesman handicaps himself in selling, no matter how superior the merchandise. A carelessly typed, poorly arranged page does the same thing, no matter how excellent the argument. A small gob of jam on a single page can destroy completely the effectiveness of the brief even--if the gob is genuine Bar-le-Duc! Misspelled, misplaced, and misused words create almost as much havoc with the selling of the argument as the gob of jam. True, a word is a word even when slightly misspelled; the difficulty is that the reader's attention lingers on the mangled word rather than on the thought intended to be conveyed. Misplaced and misused words distract attention and may suggest vagrant ideas far removed from the argument intended. As to misspelled and misused words, no remedy is 100 per cent effective, but one highly recommended is the purchase of two good desk dictionaries--each costing more than a quarter, that is (5)--to be used at least twice daily by the lawyer and as needed by the secretary. (6) As for the misplaced words--possibly the best preventative is a secretary who majored in English composition; and if that provocative helpmate is unavailable, the next best thing is the purchase of a grammar for adults and an elementary work on semantics. (7) Incidentally, semantics should be a required study in every law school, even though it would result in precise and concise legal documents and hence curtailed fees and less litigation. The only students excused should be those who intend to enter the legislative field.

A brief should be brisk but not breezy; it should neither dart nor dawdle. Arguments should not be delayed by patter, and goldbricking words should be eliminated. The literary style used in a brief should be influenced, rather than dictated, by the judge who is the objective of the brief. If the judge feels apprehensive in the presence of polysyllables, only monosyllables should be used--although it may be permissible to slip in a few of the simpler two-syllable words. If the judge reaches for an aspirin after every complex sentence, use only simple sentences--although an occasional compound sentence may be tolerated...