LawProse Lesson #254: The four necessities of brief-writing.
Persuasion is a complicated product of successful conscious and unconscious effects. As a brief-writer, your goal is to persuade the judge to rule in your client’s favor. Generally, to achieve this, you must do four things:
1. Get the judge’s attention.
Don’t let your brief be one of those dense, befuddling aggregates of facts, law, names, and procedural details. You know, like 99% of the briefs that cross a judge’s desk. Let the judge know the determinative law and facts on the first page. And tell the gist of the story.
2. Assure the judge that what you have to say will help in efficiently deciding the issue at hand.
Explain which facts matter and why, how the crucial legal doctrine applies, and why the counterargument fails.
3. Show the judge, vividly and memorably, the points you have to make—while coming across as a thoroughly reasonable and reliable lawyer.
Sum up your argument in a logical sequence. Give the judge a roadmap that the body of your brief delivers on.
4. Leave the judge with a conviction that the time spent with your brief was worthwhile.
Don’t throw away your conclusion. Use the opportunity to leave the judge with the big picture of what’s at stake.
If you successfully do those four things, you will almost certainly win.
Of course, there are myriad facets to the above tasks: brevity, clear issue statements, organized arguments, catchy use of quotations, pleasing text design, etc. All aspects of a brief—its tone, its sentence structure, its word choice, its basic ideas—matter. The superb brief-writers know this and focus on making the judge’s job easier.
The Winning Brief xiii, 3–7 (3d ed. 2014).
Antonin Scalia & Bryan A. Garner, Making Your Case 59–136 (2008).