From good to great: the four stages of effective self-editing.

• Author: Hendrix, Wes

1. INTRODUCTION

   Over twenty years ago, Chief Judge Kozinski of the Ninth Circuit explained the many ways in which poor legal writing can lose a case. (1) He explained, among other things, that to prevent a court from stumbling onto a valid argument, they should all be "buried" and "unintelligible," and instructed would-be losing attorneys to "[u]se convoluted sentences" and to "leave out the verb, the subject, or both." He advised them to "[a]void periods like the plague," to "[b]e generous with legal jargon," and to "use plenty of Latin ... acronyms ... [and] bureaucratese." And after quoting an example, he concluded by noting that, "[e]ven if there was a winning argument buried in the midst of that gobbledygoop, it was DOA." (2)

   To help your briefs avoid being declared DOA, this article suggests a systematic approach to self-editing. First, I discuss the danger that all appellate litigators face--overworked courts that are increasingly impatient with poor legal writing--and present some painful examples of poor writing. I then suggest that the overload in the courts is an opportunity to be seized through use of an editing process that involves more than looking for typos and errors in citation form. Just as Bryan Gamer advocates the now familiar Madman-Architect-Carpenter-Judge paradigm as an approach to legal writing, I suggest that the editing process should likewise be divided into distinct steps. I believe that the editor should focus individually on the draft's substance like a law clerk, on its organization like a logician, on its style like an artist, and on its mistakes like a law-reviewer would.

2. THE DANGER YOU FACE, AND THE RESULTING OPPORTUNITY

   Judges are overwhelmed. In the twelve-month period ending March 31, 2013, 56,453 appeals were filed in the federal courts of appeals. (3) Given this volume--and the fact that the great majority of the courts' interactions with litigants is through written work product--judges are understandably impatient with poor legal writing. The judges' job is difficult enough without having to decipher what a sloppy, unorganized, and unclear brief is trying to communicate. At best, when faced with an unhelpful brief, a judge will simply choose the shorter, easier path of setting the brief aside (and perhaps also adopting the perspective suggested by the opposing brief). When that happens, of course, the lawyer loses all ability to persuade. At worst, however, the shoddy work product results in serious negative consequences for the lawyer and the client.

   Case law is replete with cautionary tales demonstrating this reality. Recently, the First Circuit dismissed an appeal because the appellant's brief failed repeatedly to give the court what the rules required. (4) The court explained that "busy appellate judges depend on counsel to help bring issues into sharp focus," yet the appellant's brief "offer[ed] no specific record cites to support her version of the facts, which ... she allege[d] are in dispute." (5)

   To make matters worse, the brief "provided] neither the necessary caselaw nor reasoned analysis to support her theories." (6) Under these circumstances, the court concluded that the lawyer's work did not reflect "the type of serious effort that allows [a court] to decide difficult questions," and noted that "doing her work for her [was] not an option, since that would divert precious judge-time from other litigants who could have their cases resolved thoughtfully and expeditiously because they followed the rules." (7)

   Similarly, Sanches v. Carrollton-Farmers Branch Independent School District (8) provides a stark example of the extent to which errors and tone can distract from the merits of a brief. After quoting a portion of the appellant's brief that it characterized as an "unjustified and most unprofessional and disrespectful attack on the judicial process" and the magistrate judge assigned to the case below, the court noted that several sentences in the brief were "so poorly written that it is difficult to decipher what the attorneys mean." (9) The court continued by noting that "[u]sually we do not comment on technical and grammatical errors, because anyone can make such an occasional mistake," but then proceeded to observe that "here the miscues are so egregious and obvious that an average fourth grader would have avoided most of them." (10) Specifically, the court pointed out examples of misspellings, a lack of subject-verb agreement, and that "Magistrate Judge Stickney is referred to as 'if instead of 'he' and is called a 'magistrate' instead of a 'magistrate judge.'" Finally, the court complained that "the sentence containing the word 'incompetence' makes no sense as a matter of standard English prose, so it is not reasonably possible to understand the thought, if any, that is being conveyed." (11) Imagine that opinion landing in your inbox. And then picture yourself discussing it with your client.

   One final example shows that, at times, poor writing may even result in sanctions and a finding of misconduct. In Thul v. One West Bank, (12) defense counsel moved to dismiss the case, but their motion failed to cite a recent, binding Seventh Circuit opinion. After denying the motion, the court ordered defense counsel to show cause why they should not be sanctioned. (13) In response, defense counsel asserted that they viewed the omitted case as distinguishable, but the court disagreed, noting that although the lawyers might have been persuaded that the omitted case "was distinguishable in some way, ... the Seventh Circuit has made it clear that the tactic 'of pretending that potentially dispositive authority against a litigant's contention does not exist is as unprofessional as it is pointless.'" (14) The court concluded that sanctions were not necessary, largely because defense counsel took responsibility for their conduct and had been named in a publicly available document, which is, as the court put it, "of no small consequence to a professional whose reputation 'is his or her bread and butter.'" (15)

   These examples make clear that the judiciary is increasingly impatient and irritated with attorneys who impede the courts' ability to manage high caseloads by filing poorly written, unhelpful briefs. Ironically, however, this reality creates an opportunity for those who are willing to put in the time and work necessary to craft clean, organized, and thorough briefs. If you are focused on helping the court by presenting a high-quality brief, your work will stand in stark contrast to the legions of poorly written briefs. The court will appreciate the effort and be much more likely to rely on your representations and to consider your arguments carefully. And of course those arguments will be more easily understood and more likely to resonate with your judges.

   To fully seize this opportunity, writers must combine many skills acquired and honed over time. One critical aspect in the process is self-editing. It is so critical that I suggest it be split into distinct steps or stages. Only then can you get the most benefit out of the process, give the court the best possible briefs, and put your clients in the best possible position to win.

3. The Four Stages of Effective Self-Editing

   In 1979, a University of Texas professor introduced a systematic approach...