A Brief Primer on Briefs

Vol. 1, No. 4

J. Michael Eakin is an associate justice of the Pennsylvania Supreme Court, where he has served for a decade. He previously served on the Pennsylvania Superior Court and as the Cumberland County district attorney. Justice Eakin cochaired the Pennsylvania Bar Association’s Plain English Committee in 1998.

 

Among the tips below:

 

  • Be concise.

 

The great enemy of clear language is insincerity. When there is a gap between one’s real and one’s declared aims, one turns as it were instinctively to long words and exhausted idioms, like a cuttlefish spurting out ink. —George Orwell

 

It isn’t that brief writers are insincere (though sometimes their wordiness makes one wonder). It just seems lawyers instinctively lapse into long-windedness and legalese when they write what they perceive as a scholarly document that will be attributed to them. Instead of saying what they mean in crisp, clear language, they muddy things with those “long words and exhausted idioms” that in the end do not advance the reader’s ability or desire to comprehend the message.

 

Too often it seems the amount of ink expended on the brief is like that of the cuttlefish: serving to distract rather than illuminate. In the end, the more spewing ink a court sees, the less likely it is to find credibility in the words that ink may form.

 

The penchant for verbosity is the most common sin of written advocacy in the eyes of most jurists. The goal of a brief is not a thorough academic treatment of a subject, but persuasion of the jurist who reads it—it should be crafted to lead the jurist to the end the writer desires. One should not clutter the path with comprehensive but irrelevant recitations of legal principles.

 

The more complex the instructions, the more time spent on the peripheral, the less likely it will be that the reader arrives at the desired end. A brief should never require the reader to interrupt the journey in order to reach for a dictionary or a thesaurus.

 

Displaying a large vocabulary will not persuade, and will not impress, the court—we hear big words all the time (and even know a few ourselves). We don’t give briefs a grade.

 

Helping the jurist understand the issue, your logic, and relevant authority is what matters. Do that in clear, concise language, and you’ll increase your chances of having the court listen to what you have to say.

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