The Winning Brief, 3d ed.

• Date: 22 March 2014
• Author: Kaplan, Carl S.

The other day I took some of my students from a criminal appeals brief-writing class to drop in on a trial. It's always good to get the students' heads out of the cold records they're reading and let them and see and savor knockabout scenes from a real case. And we hit the jackpot: a mother on trial for killing her son, a sickly boy on lots of different medications, by giving him a fatal dose of at least fifty pills while they were staying at a fancy midtown hotel. The defense, according to newspaper accounts I had read, was extreme emotional disturbance. The mother admitted that she had killed her son, and said she tried to kill herself. But she did it because she was convinced that death was the only way to keep her son from the boy's father--a man she believed had sexually abused the child. The prosecutor's cross-examination, of which we saw a portion, focused on the methodical acts that preceded the apparent murder.

The next day I read a story in The New York Times about that cross-examination, and lingered over one of the reporter's sentences:

She said she dropped 10 pills at a time into Jude's mouth and had him wash them down with water--a familiar bedtime ritual for him. (1) That's a wonderful sentence, I thought. I wish my students could write a statement of facts filled with sentences like that. I wish I could write like that all the time. Why was it so good?

And then I heard Bryan Garner in my ear: It's a good sentence because it's concise, clear, and vivid. It's in the active voice. The words are short, mostly one or two syllables. Nouns and verbs, not adjectives and adverbs, predominate. The verbs are punchy--she "dropped" the pills into the boy's mouth and had him "wash" them down with water. And that em dash--it sets off the last clause with flair.

Reading the latest iteration of Garner's The Winning Brief (2) will do that to you. The book clicks on a light and reveals the building blocks of good writing. But that's no surprise.

WHAT GARNER SAYS

Garner, as many lawyers and judges know, is perhaps the leading writer, teacher, editor, and evangelist for the plain style in legal writing--simple, clean, direct, and forceful. He is president of LawProse, which offers legal writing workshops and CLE courses. As a consulting editor, he has tweaked or massaged thousands of briefs into better shape. He has written a number of other books about style and usage, (3) and is editor in chief of Black's Law Dictionary. He has interviewed some 180 state and federal judges, including nine justices of the Supreme Court of the United States, to better understand what makes a brief good or bad. He has co-authored two books with Justice Antonin Scalia, (4) and was admired by the novelist David Foster Wallace. (5) He is a word man without peer, and his usage and grammar rules are gospel.

This new third edition of The Winning Brief (700 pages), is an expanded and revised version of the second edition (459 pages), which built on the first edition (390 pages), published back in 1996. The latest volume follows the previous books' tried and true formula (Garner would scratch the cliche) of offering 100 mini tips for writing a brief, with each tip's explanatory nugget of three or four paragraphs sandwiched between colorful "Quotable Quotes" from writing authorities (6) and examples of dos and don'ts. He also condensed some material to make room for nine new...