Top 10 Tips for Writing a Good Brief
by Tom Yerbich
What is a “good” brief? That is a question on which there are many different viewpoints. The brief is your first, and perhaps best, chance to tell your side of the story to the court. A good brief does not necessarily mean you will win, but a bad brief can certainly substantially diminish the odds. The following are my 10 rules garnered from the perspective of over 30 years experience in writing and reading briefs, from the so-called “garden variety” to the most complex issues of law and fact. When reading this, keep in mind that, as with all monographs on brief-writing, this is but one person’s observations and opinion.
- Write briefs, not law review articles. According to common dictionary definition, a brief is short in duration, extent or length—a concise statement of a client’s case. Keep it short! Just because the rules allow up to 50 pages or some other number does not mean that you need to use 50 pages. Somewhere between the 15th and 20th page, eyes begin to glaze over and interest begins to wane. Trial judges do not have the luxury of infinite time to devote to reading briefs.
- Avoid personal attacks. While it is certainly fair game, indeed expected, to attack the arguments advanced by opposing counsel, attacks on the integrity, veracity or intelligence of opposing counsel are inappropriate.
- Concede the indisputable. Do not dispute the indisputable, particularly facts, just so you can prove to the world just how hard-nosed you are. Doing so merely clutters up the brief and distracts from whatever valid points you may raise.
- Check citations. It is very disconcerting to see a case cited only to find that the citation is incorrect and the case is not where it was said it would be. While errors in the volume and/or page of a reporter are less of a problem today with WestLaw and Lexis than they were in the dark ages when I first started practice (we actually had to rely on bound and printed volumes without a search engine), misspelled names coupled with errors in the volume and/or page can make locating the cited case burdensome.
- Quote accurately. This is not only true of quotes from authorities cited, but also quotes from the record or a document. It does not bode well when the judge catches you misquoting a case or a factual matter. Do not assume that the judge will not read the source, be it a contract clause or an excerpt from a deposition transcript. You do not want to get a reputation that casts your veracity and integrity in doubt.
- Read the case, not just headnotes. Make sure the case you cite for a legal position actually supports that position. If you want to lose what might be an otherwise good case, just cite a case for a rule of law when the case actually holds the opposite, or take a statement out of context (the case may not stand for the principle that you ascribe to it). Be aware that a holding may be very fact-specific and not as broad as the particular statement you have so carefully excised appears to be. This can be particularly problematic when citing non-controlling authority; the persuasiveness of non-controlling cases diminishes as the factual differences between the cases diverge.
- Cite controlling authority. If available, use cases that the court must follow first, and use non-controlling cases only where necessary. It does not do one much good to cite a Sixth Circuit decision in the Northern District of Illinois when there is a Seventh Circuit case directly on point that undercuts or, even worse, destroys your argument. This is true even if your circuit stands alone and several other circuits hold to the contrary. It is not for a trial judge to resolve conflicts between your circuit and other circuits; he or she must follow what the controlling circuit says is the law. If your circuit is in error, it is for your circuit or the Supreme Court to correct.
- Beware over-intellectualizing. The use of obscure verbiage may impress the reader with the breadth of your vocabulary, but making the reader resort to a dictionary to translate is considerably less than impressive. “Nattering nabobs of negativism” may be “cool” (as my grandchildren are fond of saying) when used by a politician but it is of questionable value in a brief.
- Avoid undue repetition. Repeating the same point in an argument several times using slightly different words should be avoided. Make your point in the best terms you can the first time. (That does not mean you should not make the same point in your statement of issues, argument and conclusion.)
- Acknowledge unfavorable controlling law. If controlling law is unfavorable to your position, acknowledge that fact and make your best argument as to why it should not be applied to your case. If you cannot make a cogent argument for your position, it is probably best to abandon that point. Ignore contrary controlling law at your peril. Read and heed Rule 9011!