Leaving an impression of conviction with the reader and satisfying his curiosity.

• Jurisdiction: United States

Section 38. Leaving an impression of conviction with the reader and satisfying his curiosity.—If a case is a close one, even the most experienced and learned judges will be in doubt after having read the briefs on both sides. But no one should be left either in doubt or with curiosity unsatisfied after reading the brief on only one side. If anyone is, then the lawyer representing that particular side hasn't written an effective appellate brief.

I have left this element for the end, not because it is the least important but because it is really the sum-total of what you are seeking to do when you sit down to write a brief. At the very least, the brief must be convincing by itself. At the very least, your brief should be in such shape that, if the other side filed nothing, a judge reading your brief would understand the case and be persuaded that you should prevail.

Of course, there isn't any magic talisman for that. All the other items that have been discussed contribute to it, yes, but every case differs from every other case, and so the techniques that carry conviction to the reader in one situation will fail to do so in another.

Perhaps I can best explain what I am driving at under this heading by recalling the circumstances that gave rise to its formulation:

Government briefs for Supreme Court cases are prepared either by the agency concerned (the Securities and Exchange Commission, the Interstate Commerce Commission, and so forth) or by the appropriate division of the Department of Justice—Tax, Criminal, Civil, Antitrust, Lands, and so forth. Those briefs are then reviewed by an attorney on the staff of the Solicitor General, who makes whatever revisions he deems necessary before submitting them to the Solicitor General for final approval. The revisions are often extensive, and on occasion amount to a complete rewriting. The revising process is frequently a painful one, either to the rough-drafter, whose beloved brain children are ruthlessly carved up and irreparably maimed, or to the reviewing lawyer, who is struggling under pressure to supply the analysis or the research or the literary quality that should have been contributed earlier, or to both. I have been in both positions, so I think I can discuss the business dispassionately.

At the reviewing level, my normal inclination was to pass an adequate job, add a few commas or a citation or two, and then let it go on—not because I was more tolerant of other people's sensibilities, but essentially I...