Are you persuaded by your appellate briefs?

Originally published June 30th, 2011 , 6:14 pm

One of the dangers of being a writer is falling in love with your own words.  Attorneys who write their own briefs are no exception.  You have to be willing to sacrifice your “babies” for the sake of a polished product.  At times, I have finished a brief and felt so convinced of my position that I was surprised when the other side even bothered to file a response.  They should just give up and go away!  Or maybe send me a message that they just can’t top my brief.  Unfortunately, that never seems to happen, and when I receive my opponent’s brief, I often wonder how the hell I am going to respond to their brilliant arguments.  Fortunately for my clients, that feeling soon dissipates and I manage to find a way to counter their arguments.

There are also times that I finish a brief, believing it is the best it can be, and I have nothing more to add.  I am done.  That’s usually when I put the brief aside for a few days and send it off for others to read.  When I pick it up again, I feel fresh and often find ways of adding to what seemed finished only a few days earlier.

I cannot stress enough the importance of writing a great brief.   That starts with organizing and outlining, to structuring sentences, and then building them into strong paragraphs.  But a brief needs an infusion of humanity, because after all, we are dealing with human beings.  A brief must work on a number of levels, but essentially, it must persuade.  Or to put it on a more basic level, it must sell your position.

The idea that a brief would be the cornerstone of an appeal has not always been true.  Briefs were not required until 1884, which was 11 years after the birth of the typewriter.  Before then, oral argument took center stage and could often go on for days.  Of course, there was no television then and oral argument might have provided some entertainment value.  By 1849, the United States Supreme Court limited oral argument to two hours per side.   I can’t imagine having 30 minutes, let alone two hours, for oral argument.

The importance of writing is taking a new turn and fast becoming a lost art.  With the flood of information we receive from various sources, we don’t have the time to read, even for the pure pleasure of it.  For instance, it is not unusual for me to receive over 200 e-mails a day.  Some of them are junk mail, but many of them are trying to give me information that might be of interest to me.  Imagine if you went to your mailbox and found 200 letters per day filing up the box!  You would feel overwhelmed and try to find ways to streamline the task of reading this mountain of information.  That’s what I find myself doing.  I read a paragraph or two, and then often discard the e-mails.  This is true even if I find the information of value!  And we only have to look at our e-mails to learn that we are looking for short cuts to write, such as eliminating punctuation and coming up with quick ways of communicating.

If you find yourself having trouble on focusing and reading or writing in this manner, then you might wonder if the justices are doing the same thing.   Maybe they have better attention spans than I have.  What it means to me is that briefs must be concise and get to the point.  They must be interesting.  If you pick up your brief, and you don’t fall in love with the words and find them interesting, then it’s time to start rewriting.  And you must be willing to sacrifice some of those words so that your briefs are persuasive and to the point.