Earlier this year, Rebecca A. Copeland reported on a meeting of the Hawaii chapter of the Federal Bar Association. Four judges of the Ninth Circuit attended and offered tips on brief writing. Rebecca was kind enough to report their advice. Three of their tips struck me the most.
Simpler is better
“Think through your case and figure out why you should win — try to come up with a short, simple explanation and trying it out on a non-lawyer to see if it makes sense.”
Early on, I viewed appeals as a law school exam in which one gets extra credit for raising every imaginable issue. I would then dress the issues up in legalese so that the reader would know that I knew what I was talking about. Thankfully, my thinking changed after I played a small part in a huge, multi-party appeal where a 3-page brief, making a single point without adjectives or adverbs, won the day. I now strive for simplicity.
Tell a story
“A well told story in the Statement of Facts will help guide the judge’s view of the rest of the argument.”
An earlier post of mine describes the power of story-telling and how narrative can drive the argument. Years ago, I helped represent a nurse who dispensed medicine in a prison. A prisoner “dashed” her by throwing his urine on her through the window of his cell. The Department of Corrections argued that it owed no duty to protect her from what it acknowledged was a dangerous convict. Filling in the details of the “dashing,” and how the nurse felt after being hit in the face with the convict’s urine, helped the case settle on appeal.
Tips on how to tell the story are available here.
Use the Table of Contents persuasively
“Take advantage of the Table of Contents to explain to the court what the case is about.”
Another post of mine explored how to use the Table of Contents effectively, both by nestling complete sentences to describe the case and to confirm the argument’s structure and flow.