Substance & Style

• Year: 2024
• Citation: Vol. 93 No. 6 Pg. 22
• Pages: 22
• Date: 01 December 2024

Substance & Style No. 93 J. Kan. Bar Assn 6, 22 (2024) Kansas Bar Journal December, 2024

November, 2024

Briefing Smarter with Research- Backed Strategies

By Pamela Keller, Clinical Professor, University of Kansas School of Law

In this column, I share insights from recent scholarship on brief-writing. I share drafting tips, empirical data to support conventional brief-writing wisdom, and information about using generative AI. If you would like to dig deeper into any topic, see the citations in the endnotes (with hyperlinks if you are viewing this online).

#1 — Don't assume your reader will read your brief straight through — adjust accordingly.

When you organize your next brief, adjust for the "expert reader."^[1] Research confirms that expert readers skim and skip around documents to find information that is likely to be important for a specific purpose, and they interact with the text as they read.^[2] In the same way you skip around and look for important information when reading a case, a judge or law clerk may skip around when reading your brief.^[3] Take steps to help them more readily find and better understand important information.

To help the expert legal reader, you should make the "skeleton" of your brief — the structure, the connections, the overall plan — obvious.^[4] In deciding that structure, you should consider how the judge will think through the issues and try to match their expectations.^[5] Your judge will be thinking through the issues objectively and wont necessarily want to begin with your best argument; they may have a different order in mind. Use single-sentence headings that signpost the structure and allow them to find the important information they want at the moment.^[6]

''If you are writing a simple one-issue brief, try to end your argument with a bang, and then move right into your one- or two-sentence conclusion.

Also think about how those headings will look in your table of contents, and make sure they include enough information that connections between arguments are explicit or easy to infer.^[7] An appellate judge will want to understand your big picture argument by looking at the table of contents alone.^[8] A district judge might skim your headings or use your introduction for the same purpose. Thus, your TOC or introduction should communicate your "skeleton" framework.

Finally, look for more opportunities to preview information with roadmap paragraphs and thesis/topic sentences.^[9] Expert readers slow down over information they think is important, so use thesis/topic sentences to assert important information before you offer your legal support.^[10] When expert readers encounter difficulties with the text, they ask questions and find answers before moving on.^[11] Preview your conclusions, so the expert reader is primed to look for the support that follows. Don't save all your best-written conclusions for the end; an expert reader might not get there.

#2 — Adapt to your opponent's framing of their argument and be careful with emotional appeals.

A recent article in the Journal of the Legal Writing Institute summarizing social science research on brief-writing^[12] offers support for common drafting strategies. First, frame your issues and arguments with the other side's framing in mind.^[13]Evidence shows that a respondent is less likely to obtain a favorable outcome if they do not adapt their frame in their response brief to the petitioner's reframing in their brief.^[14]Second, avoid overly emotional appeals in a brief. Social science...