How to Make Technical Briefs Understandable for Generalist Judges. With some care and effort, a lawyer can reduce even the most complicated subject matter to something that generalist judges--and their clerks--can understand

AuthorHugh S. Balsam, Patrick C. Gallagher
Pages16-23
Appellate Practice
Summer 2020, Vol. 39 No. 4
© 2020 by the American Bar Association. Reproduced with permission. All rig hts reserved. This information or any portion thereof may not be
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16
March 06, 2012
How to Make Technical Briefs
Understandable for Generalist Judges
With some care and effort, a lawyer can reduce even the
most complicated subject matter to something that
generalist judges—and their clerkscan understand.
By Hugh S. Balsam and Patrick C. Gallagher
Legal briefs on technical subjects don’t have to be impenetrable. With some care and effort, a
lawyer can reduce even the most complicated subject matter to something that generalist
judges—and their clerks—can understand. Doing so is important because you want the judge to
be able to write an opinion in your client’s favor, and a judge isn’t going to be comfortable doing
so if it is impossible to understand the factual reasons why your client should win.
We know that many lawyers have spent years mastering the science that underlies their special
area of practice. The poor judge reading your briefs, however, likely doesn’t share your passion
for and mastery of, say, the biochemistry behind the development of pharmaceutical products.
This disparity in knowledge can be a problem if your case involves—to continue with the same
example—a drug patent. If you expect to prevail, you’re going to have to simplify the science in
your brief. If you don’t, you risk losing the judge—and your case.
So, it should be clear from the start that your brief is not the place to show off the depths of your
knowledge. Rather, it is the place to educate the judge, starting with the very basics, about the
science that provides the context for the legal issues raised in your case. Judges and clerks, while
adept at researching the law, are unlikely to research the science and technology independently.
So your job is to give them all the knowledge they need to decide your case.
This article will help you do that. It is the product of 15 years experience distilling very dense
scientific matter to produce clear and understandable briefs that even a grandmotherOK, a
sharp grandmother—can comprehend. We have also talked to district judges and clerks to
ascertain what they view as helpful—and unhelpful—in briefs in scientific and other technical
subject areas.
While we refer frequently to patent cases here, this article is not limited to patent briefs. Rather,
the tips and techniques we discuss apply equally in any case where the underlying subject matter
is specialized and technical. Think medical malpractice or financial fraud, or even a case that
involves a complicated statutory scheme. (Have you read through the Fair Credit Reporting Act
lately?)

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