How to Write, Edit, and Review Persuasive Briefs: Seven Guidelines from One Judge and Two Lawyers

• Publication year: 2008

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 31, No. 3SPRING 2008

ARTICLES

How to Write, Edit, and Review Persuasive Briefs: Seven Guidelines from One Judge and Two Lawyers

Judge Stephen J. Dwyer, Leonard J. Feldman and Ryan P. McBride(fn*)

I. Introduction

The ability to write a clear and persuasive brief is one of the most important weapons in a lawyer's armory; this is especially true for appellate practitioners. Although oral advocacy skills are important, a litigant's briefs are reviewed long before oral argument, when judicial law clerks are drafting their bench memoranda and judges are deciding how to approach oral argument and decide a case. Briefs are often reviewed a second (or third, fourth, or fifth) time after oral argument-when judges and their clerks are crafting the court's decision and revisiting the issues that the court must decide. For these reasons, a clear and persuasive brief often has a greater impact than even the most inspired oral argument. Moreover, it is becoming increasingly common for courts to decide cases without oral argument. In those instances, a compelling brief is critical to a litigant's success, and the only way to make an impact on the court.

The ability to write and recognize a persuasive brief is important to lawyers throughout their careers. Junior attorneys are often responsible for initially writing a brief. Senior attorneys often review those briefs and either rewrite or edit them (as circumstances require). In-house counsel may then review the briefs once more, providing additional edits and comments and addressing concerns. Wherever you happen to be in your career, it is important to know how to write, rewrite, edit, recognize, and review an effective brief. This Article offers a number of guidelines for crafting such briefs and provides a number of practical pointers to help lawyers along the way from writing through final review.

More specifically, this Article offers seven general guidelines for writing persuasive briefs. Those guidelines, each of which is discussed in Part II, are as follows: (1) begin your brief with a compelling recitation of the relevant facts; (2) acknowledge the applicable legal standard and use it to your benefit; (3) carefully pick your strongest arguments; (4) present your arguments logically; (5) present your arguments simply and concisely; (6) be accurate, fair, and even-handed; and (7) follow the court's rules and sweat the details. Finally, although the discussion of these guidelines is focused primarily on appellate briefs, it is important to note that almost everything we write here applies equally to trial court briefing. After all, a good brief is a good brief.

II. Seven Guidelines For Persuasive Brief-Writing

A. Begin Your Brief with a Compelling Recitation of the Relevant Facts

One of the most important guidelines for writing a persuasive brief is to start by telling your story. Do not wait until you reach the argument section of your brief to begin arguing your case. A persuasive brief begins with a compelling recitation of the relevant facts; that is true even if the case is to be decided on purely legal grounds. The trick here, of course, is to present all the relevant facts while, at the same time, highlighting the facts (or absence of facts) that support your theme of the case and your legal arguments. Subtlety and accuracy are critical. If your presentation of the facts is too argumentative, unbalanced, or misleading, your credibility will suffer and your otherwise valid legal arguments may be discounted.

The following three examples illustrate the difference between a statement of facts that lacks persuasion or credibility and one that subtly conveys your theory. In the first example, the author sets the stage with a hum-drum presentation of facts that has all the relevant information, but lacks persuasion:On January 5, 2005, ABC Co. sent a written purchase order to DEF Co. for 100 widgets at an advertised price of $1 per widget. When it received same on January 7, DEF put 50 widgets in regular mail addressed to ABC with an invoice for fifty dollars. On that same day, ABC sent a purchase order to XYZ Co. for 100 widgets at an advertised price of $.50 per widget. On January 9, ABC received DEF's widgets and invoice. The next day, ABC returned DEF's widgets. This is pretty boring; in fact, after reading this, one cannot figure out which side the author represents.

In contrast, in the next example the author put an overly aggressive spin on these facts, one that is far too argumentative for a credible fact section:On January 5, 2005, ABC Co., acting in the utmost good faith, sent a conditional purchase order to DEF Co. that required DEF to send ABC precisely 100 widgets according to the strict terms and conditions of ABC's purchase order, or not at all. DEF specifically refused to accept ABC's purchase offer. Instead, DEF made an express counteroffer. It did so in two ways: one, it varied the quantity term by sending ABC less widgets than it wanted (50 instead of 100); and two, by making acceptance of the widgets subject to a vastly different (and commercially unreasonable) set of terms and conditions pre-printed on DEF's written invoice form. Left with no choice, ABC was forced to cover itself by purchasing alternative widgets from XYZ Co. under acceptable terms. The problems with this version are almost too many to count (although at least you can tell who the author represents): it uses loaded, legally significant terms (offer, counteroffer, cover); it omits key facts (such as the price and when DEF sent ABC the widgets); and, worst of all, it is purposely misleading (implying that ABC had no choice but to contract with XYZ because DEF's widgets or terms were unacceptable).

The following example avoids these pitfalls. Here, the author carefully shapes the facts without distorting them:ABC Co. needed 100 more widgets to satisfy customer demand. At the time, the best price on the market was $ 1 per widget from DEF Co. So, on January 5, 2005, ABC sent DEF a written purchase order. The PO specifically called for 100 widgets and set forth ABC's standard terms and conditions. Although there was no way for ABC to have known it at the time, DEF could not fill the order. But rather than inform ABC of that fact, on January 7th, DEF simply went ahead and put 50 widgets in the...