For the best brief, get some sleep and some help

Sybil Dunlop
BridgeTower Media Newswires

I’ve been thinking about brief writing lately. I’ve been teaching a legal writing CLE. But I’ve also been writing several briefs. And so the form and substance of the brief has been in the forefront of my thoughts. Here, I aim to compile a list of my own best practices as well as my favorite brief-writing advice stolen from others.

Introduction

I clerked for Judge James Rosenbaum. And he firmly believed that every brief should be explained in the first six sentences. Within those six sentences, the aim is to tell the Judge about the dispute, why you should win, and what you want if you do win. Unfortunately, I have a hard time crafting this perfect six-sentence summary the first time around. So I usually write the whole brief, draft a cracker-jack conclusion (summarizing why we win), and then realize that my conclusion should be the introduction. I’ll copy and paste the conclusion into the introduction (and then draft a new conclusion).

Fact section

This is your story. And all the standard advice about telling a good story, of course, comes into play. I aim to use short sentences; eliminate adjectives; show instead of tell; and use primary source material when possible. By this I mean that, instead of describing a witness’s testimony, I’ll cite the deposition so the judge can see firsthand the words used. Instead of describing a contract provision, I’ll cut and paste a picture of the key provision right into the brief. (This also has the advantage of calling out key contract provisions in a way more likely to attract notice than a block quote. The eyes tend to glaze over block quotes.) I also think about organization for the story. Is the story best conveyed chronologically? Through an introduction to the parties? Through a description of the contract?

Finally, my favorite tip for the fact section: Dates are hard to remember and follow. Better to pick one key date (the date the parties signed the contract, for example) and orient everything else to that date. So instead of writing that the parties executed the contract on May 22, breached on May 29, and sued on June 5, it is easier for the reader if I write that the parties executed the contract on May 22, breached one week later, and sued two weeks after executing the contract.

Standard of review

So often, it is easiest just to pull out an old Motion to Dismiss or Summary Judgment brief and keep the standard of review section consistent with the last brief. And sometimes – in a pinch – this is enough. But if I am going for gold, I like to take it up a notch in two ways. First, I look at the judge’s recent orders and see how our judge phrased the standard of review. Are there cases he or she repeatedly cites (beyond the standard bearers)? Do they emphasize any particular aspect of the standard? Second, I like to find cases that are (1) similarly situated to ours; and (2) resulted in the outcome that we are seeking on the motion. Then, I examine the case to see whether I can draw any conclusions about the ways in which the standard of review influenced the outcome. In this way, we can show the Judge that we are appropriately seeking resolution under the right standard (by highlighting similar cases resolved under the same lens).

Legal analysis

This is the fun part—why we win as a matter of law. Here, we cite the law; compare our facts to similar cases; and argue for our desired outcome. As I’ve grown as a lawyer, I’ve learned to think more broadly about resources for this section of the brief. It’s not just about cases. I can use the Restatement, legislative history, jury instructions, and law review articles. When nothing else is working, I’ll look at all the cases and attempt to draw my own synthesis and explanation as to what they mean—the underlying principles and the conclusions to be drawn.

Editing

I’ve learned that the quality of my brief directly correlates to the amount of time I give myself to edit the brief. The best is to afford ample time to let the brief rest. Once I sleep, I will often return to a brief with new insights or ideas about organization or structure. I also know myself—I am a better editor in the morning instead of the evening. Everything from typos to language choice will be improved if I get some sleep. I also like to enlist the help of trusted colleagues. The trick? To let folks know what kind of editing help I am seeking. Nothing is worse than giving someone a brief an hour before it is due and having them offer massive structural overhaul advice. Much better to tell someone “this brief is due in an hour, can you give it a final proofread?” Or to provide it a week in advance and request substantive assistance. Finally, I have started conducting different rounds of editing. First, I edit for substance. Then, I edit for style. Finally, I edit for consistency and proofreading purposes. Because eyes can glaze over by this final round, it is sometimes nice to outsource the proofreading.

Writing a brief is one of my favorite parts of our profession. I love getting up early, grabbing a cup of tea, and sitting down to respond to an opponent’s arguments. And the lovely thing about writing is that we can continue to improve throughout our lives. I want the briefs I write now to spin circles around the briefs I wrote five years ago. And I hope my future briefs will outperform my current work. And if you have any advice to share on this front too, I’m all ears.

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Sybil Dunlop is a partner at Greene Espel PLLP in the Greater Minneapolis-St. Paul area.

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