The joy of editing: better appellate briefs.

AuthorElligett, Jr., Raymond T.

The saying, "If I had more time, I would have written a shorter letter," is attributed to numerous historical figures from Cicero to Blaise Pascal to T.S. Eliot and Winston Churchill. While this is no doubt a reaction of appellate judges to some briefs that should have been edited more for length, the thorough editing of a brief encompasses many levels. Beyond striving to be succinct, the appellate practitioner must edit for clarity, accuracy, structure, completeness, and to try to make an often technical and dry subject readable and as interesting as possible.

Editing for Structure

Have you stated your case as simply as possible in the wording of the issues and summary of the argument? Have you provided the readers with a road map of where the brief is going? The summary of the argument presents one opportunity for these efforts, but some cases may warrant an opening paragraph before the facts.

If your brief has more than one issue, or more than one reason supporting an issue, have you placed your themes in the best order? We recommend the "Benatar" rule: Put your best argument first. (1) Because many readers will assume the brief is structured this way, putting weaker arguments first and hoping to close strong may misfire.

Some cases present closer calls than others. Should a strong damage argument go before a weaker liability argument that would be the larger win? Consider consulting with the client on these choices.

Do your facts and your argument flow logically? Or are you jumping around? Have you edited unwanted repetition? There is nothing wrong with repeating your key points. Do your paragraphs contain a single point?

Ensure that facts are in the statement of facts, and not discussed for the first time in the argument section. It is okay to repeat key facts in the argument. It is not okay to include argument in the statement of facts. (2)

Editing for Length

Review the overall length of the brief. Can you shorten it without detracting from your case? Edit long sentences and "Faulkner-like" paragraphs. Some may disagree, but turning the page of a brief only to see a paragraph that consumes the whole page hurts the eyes and the attitudes of many readers.

Eliminate unimportant dates. Absent a statute of limitations or other timing issue, the precise day of an incident or the filing of the suit, or worse, the date of motions and hearings, is irrelevant. Sometimes a year or other marker of time may give context, and may be important to determine the applicable law, but most dates are distracting detail.

Remove string cites and long quotes from cases, which are a lazy substitute for analysis. If you do quote a passage long enough to...

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