Over centuries, these false notions have grown to dominate a litigation practice and stuff our briefs with the results of unsavory habits. We aim to dispel them, so you can deliver to the court your most persuasive brief.
1. Definitions Are Good
Lawyers define terms because other lawyers define terms; it’s a reflex. Definitions rarely serve a purpose, and they make our writing less accessible. Most often, we define a term with itself anyway: “Travelers Casualty and Surety Company (hereinafter referred to as ‘Travelers’).” What else are we going to call “Travelers”? What else will judges think when they see “Travelers”? Book and magazine writers do not define terms; they abbreviate, or they repeat when necessary, so their readers always know what they mean. Lawyers define a term and make the judge keep track of it. Use the full name once, then use the abbreviated form, but don’t tell the judge you’re going to: You will not confuse a judge if you write “Far East” when you really mean “Far East Enterprises.”
2. Long Sentences Are Bad
The problem is never in the length; the problem is in the clarity. If a long sentence is clear, the length does not matter. Too often, we write as we’re told, “in short, declarative sentences”; this “subject-verb-object” cadence can irritate a judge. Usually, we want to write in medium-size sentences, using an occasional short sentence for emphasis, or a long sentence to develop an idea or syllogism.
3. “Clearly” Is Proof
So many lawyers use this word when nothing is “clear” that it has become a sure sign of weakness in a brief: judges and their clerks are waiting for us to use it; then they double the burden of proof on us.
4. Exaggeration Is Persuasive
Another sign of weakness: the louder we yell, the weaker our case. Judges know this. As one of our better-known lawyers, Abraham Lincoln, told a crowd in 1842: “When the conduct of men is designed to be influenced, persuasion—kind, unassuming persuasion—should ever be adopted.” Lincoln was not afraid to stand up for what was right. He just thought it more effective not to yell while he was standing.
5. Retaliation Is Zealous
Many lawyers with a weak case will accuse the other lawyer of delay tactics, ulterior motives, and outrageous behavior. And they have a chance of winning that weak case only if the other lawyer retaliates. That’s why they do it. They want the case to devolve into a shouting match, so the judge can’t see the issues. Unless they claim you have violated legal ethics, let them run; the judge and the clerk will notice, and they already know that the louder a lawyer screams on paper, the weaker the case. They’ve seen it too many times.
6. Arguing in the Facts Is Shrewd
The surest way to lose a judge’s confidence in us and our brief is to slip opinions into the fact statement. This is where we not only tell the judge our client’s story, but also where we establish credibility with the judge. Even words like small and cold are opinions; get the size and the temperature; keep the facts factual.
7. All Facts Are Necessary
This is the bane of all writers, including lawyers: knowing what to leave out. Just like good journalists, we lawyers have to decide which facts are necessary and present only those to the court. We never ignore bad facts—we have to address those—but we never include a fact just because it’s a fact; it has to be a relevant fact, and to be relevant, it must help to support and explain one of our issues.
8. A Page or Word Limit Must Be Filled
A judge or clerk will look first at our last page to see how many pages they have to read. If the page limit for that brief is 20, and the judge sees a “16” or “17” on the last page, it signals that the lawyer has a good case and knows it well. Judges have learned this from experience—shorter briefs are almost always better—and they will turn back to the first page feeling good about the brief and the lawyer who wrote it. Too often, lawyers say to themselves or an associate, “We’ve got three more pages; let’s stick something in here!” And that’s what they do.
9. Anybody Cares What We Think
We cannot say this often enough: Nobody cares what we lawyers think; everybody wants to know how we got there. That is the art, the heart of persuasion: the facts that led us to what we think.
10. Writing “Like a Lawyer” Impresses the Court
Writing “like a lawyer” is the problem. When we use excessive legal terms and wax argumentative, we irritate and frustrate the court, who is there for one reason: to render a fair decision. We don’t want an irritated, frustrated judge deciding our case, especially when we are the source of the irritation and frustration. We should always think like a lawyer, but write like a warm, logical, intelligent, fair-minded human. By the way, those traits also describe judges and what they are sworn to do on the bench; and they are looking for our help.
We can never guarantee what will happen inside chambers, the courtroom, or a judge’s head. But avoiding the allure of these myths gives us the greatest chance of success.
About the Author
Gary Kinder has taught over 1,000 writing programs for the American Bar Association, the Social Security Administration, PG&E, Kraft, Microsoft, and law firms like Jones Day, Sidley, and WilmerHale. His critically-acclaimed Ship of Gold in the Deep Blue Sea hit #7 on the New York Times Bestsellers List.