|Oregon State Bar Bulletin DECEMBER 2010|
Almost daily we read and write court briefs. This is one of the most common tasks for a trial lawyer. As a trial attorney for 38 years and as a judge pro tem for the last 10 of them, I have written and read thousands of briefs. By brief, I mean any written argument to a judge on any subject, including a variety of formats, from a formal memorandum to a more informal letter. As a result of my work as a judge pro tem, I now more fully appreciate the importance of writing briefs that are “judge-friendly.”
Since briefs are usually read by a judge before oral argument, they shape oral argument, stimulate questions and create a framework for decision-making. Frequently, briefs are more important in affecting a judge’s decision-making than oral argument. Since oral argument is limited in many courts, it is all the more important to have effective briefs. Judges are always pressed for time. As a result, although they will read all briefs, judges often will give more weight to those briefs which are the most judge-friendly.
What Makes a Brief
1. Start With a Summary of Argument
This is what captures the attention of a judge and helps define the parameters for decision-making. This summary should be concise, carefully crafted and no longer than a few sentences. Your strongest argument should be first. Ask a judge to make the specific ruling you want. Tell the judge what you want in your summary. Explain why in your argument. Remind the judge what you asked for in your conclusion. This is effective advocacy, not repetition.
2. Depersonalize Your Argument
Judges do not care about the petty differences between lawyers. They do care about the legal issues and your reasoning. Do not personalize or attack either the opposing attorney or party. Attacking the other side is not only a waste of time but diminishes the effectiveness of your argument and a judge’s opinion of your professionalism.
3. Provide a Table of Contents
The judge will want to reread different parts of the brief. A complete and detailed table of contents on any brief over five pages is very helpful.
4. Highlight With Captions, Headings and Subheadings
Highlight your argument by breaking down the issues in an organized fashion with signposts. This will also make your table of contents more meaningful. If you have difficulty creating such signposts, you probably do not fully understand your best argument(s). Short, punchy statements work best.
5. Create Organizational Unity Among Briefs
Match up your argument with your opponent’s argument in your response and reply briefs. Give the judge organizational continuity among the briefs.
6. Shorter is Better
Repetition is distracting. Brevity and crispness have the greatest impact. Repetition encourages a judge to skim over your comments. With few exceptions, briefs are too long and repetitious and need rigorous editing to be most effective. If you can narrow issues through stipulation, this will sharpen the focus of the brief. Try to get agreement on the real issue. Long, run-on sentences are difficult to read and understand. Be short and snappy, if possible.
7. Footnote Those Citations
The traditional brief intertwines citations throughout the text. This can make the brief more difficult to read and understand. Most judges prefer citations in indent. If you footnote citations, the argument flows more smoothly. String citations are usually not helpful. Cite only the most significant cases. Remember it is only a case holding that has precedential value. Dicta is not the holding and has little value unless the holding supports your argument. Focus on the leading case holding. Always attach a copy of the most meaningful non-Oregon or federal case(s).
8. Use Direct, Plain English
Legalese does not help readability or understandability. All legalese should be deleted. Heretofore, hereinafter, hereto, etc., do not rivet a judge’s attention on what you are saying and who you are referring to. These terms are distracting, confusing and excess baggage.
9. Write in the Present Tense
Writing in the past tense with words such as have or had is unnecessary. To make your writing lively, stay in the present tense whenever possible. This is a simple matter of clear writing and editing. The present tense is more action packed and therefore more persuasive.
10. Minimize Superlative Adjectives and Adverbs
The use of words in the superlative is not helpful. These over-the-top words include very, most, always, clearly, absolutely, etc.They overstate and diminish the impact of your argument. It is not productive to tell a judge what he or she “must” do. The only “must” for a judge is to make a decision.
11. Focus on Substance
Legal hyper-technicalities can only distract from the substance of the issues. At the trial court level judges are more interested in substantive issues, not technicalities. If you commingle procedural technicalities with substance, you can diminish the effectiveness of your argument. Of course, sometimes you must raise such technical issues, but be careful not to trivialize your briefs with an overemphasis on technicalities.
12. Control the Result with an
If the pivotal legal issue is not “black and white,” a well-stated alternative result can be helpful to minimize the risk of loss. An acceptable alternative, fallback position can be important to many judges. Consider this for a response or reply brief.
Following these guidelines will not guarantee a win. But, they will assure that a judge better understands your argument and reasoning. Educating a judge is the essence of effective advocacy.
I offer the following suggestion. On your next brief, write it the way you normally do. Then do a rewrite following these guidelines. Have someone who is not involved in the case read both briefs. Then ask that person to compare the clarity, coherence and persuasiveness of the two briefs.
Remember, judges get to know lawyers through their oral and written presentations. If a judge understands your written material, that judge is likely to look forward to argument knowing that you will reliably frame the important issues. The highest compliment a lawyer can receive is for a judge to sincerely comment on the clarity and effectiveness of a brief. We all know that the quality of our reputation is our greatest professional asset. Judge-friendly briefs enhance both our effectiveness and reputation with the court.
ABOUT THE AUTHOR
The author is a founding partner of Portland’s Rosenthal, Greene & Devlin. A trial lawyer since 1972 and Multnomah County judge pro tem since 2000, Greene also serves as amicus curiae lawyer for the American Diabetes Association. He wishes to acknowledge the valuable input he received for this article from Multnomah County Circuit Court judges Richard Baldwin, Edward Jones, Henry Kantor, Jerome LaBarre, Adrienne Nelson, Susan Svetkey, Youlee You and John Wittmayer.
© 2010 Michael A. Greene