LawProse Lesson #398: A unified theory of brief-writing.

LawProse Lesson #398: A unified theory of brief-writing.

A brief must satisfy the judge that the solutions it offers provide the best course of action: reverse, affirm, or remand with instructions. Or if it’s a motion: grant or deny, perhaps with qualifications.

There’s no fill-in-the-blanks method—no “five easy steps.” There are no ready formulas or previously unrevealed secrets. Yet there are techniques for getting your ideas down, devices for approaching written persuasion, and ways of learning to think like an effective advocate.

Here’s the most we might say about a unified theory: (1) given the nature of the claims, you must figure out the three or so crucial “hunch-producing” facts that favor your client and be sure they’re unassailably supported; (2) identify the legal rules that make those facts dispositive; (3) dispel the applicability of competing rules and competing hunch-producing facts; and (4) weave it all into the recognizable form of a polished, cleanly presented brief that obeys all the court’s rules. Then you’re golden.

You do as all artists do: you labor intensively and then wait. Just wait. Soon enough, you’ll hear word from the court.

Further reading:
Scalia & Garner, Making Your Case xxi–xxiv, 41–43 (2008).
Garner, Legal Writing in Plain English 104–05 (2d ed. 2013).
Garner, The Winning Brief 50–54 (3d ed. 2014).

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