We’ve all had the experience of being told how to get from one place to another. You’ve doubtless noticed that some of your friends are exceedingly inept at it: They leave out important landmarks but include trivial ones. They don’t see things from your point of view. Other friends are picture-perfect: They draw maps with just the right amount of detail to get you from point A to point D with assurance. Never a worry: Each time you have a question on the journey, you’re reassured by the map.
If we take the extremes on the two ends of the bell curve, those on the left side fail to understand how we come to the map and maybe even why we need it. Those on the right side have troubled themselves enough to think about our perspective, our likely experience of the locale and what might be useful for us to know: major thoroughfares, approximate distances, landmarks, etc.
Someone who can draw a good map can probably write a good brief; someone who can’t draw a good map will undoubtedly write a bad brief.
Or think of a different, more passive analogy: Picture yourself as a passenger in a car, going somewhere but not knowing where because the driver won’t tell you. If you’re like most people, you’d probably feel uneasy—even if you know the driver but more so if you don’t. You’d probably like to know something about where you’re going and maybe a rough idea of how you’re going to get there.
Leaving markers
Legal arguments amount to elaborate sets of directions. They require some artful orientation for busy (perhaps even rushed) readers. Hence it’s surprising how often advocates say a court should do something or refrain from doing something and then fail to give any real orientation or guidance to their readers.
This failure happens even at the level of a single paragraph. Consider this example:
Because a court looks to the surrounding circumstances to determine “reasonable assurance,” it is important to examine the progress and state of NLR’s negotiations with Vasaly Central, Vasaly Central’s satisfaction with NLR and the previous contract, and whether Vasaly Central was seeking alternatives to NLR.
Nothing there stands out in your mind unless you concentrate really hard. It’s indistinct and frankly, boring. If you add two words (the phrase three things) and three numerals, see what a dramatic difference they make:
Because a court looks to the surrounding circumstances to determine “reasonable assurance,” the court should examine three things: (1) the progress and state of NLR’s negotiations with Vasaly Central; (2) Vasaly Central’s satisfaction with NLR and the previous contract; and (3) whether Vasaly Central was seeking alternatives to NLR.
Almost subliminally, the little markers ease the reader’s way through the passage.
By the way, note that my numerals have parentheses on both sides, not just the right side. Parentheses and brackets come in pairs. That’s my view. And even though I’ve put the words and numbers in boldface, please understand that you should never do that in a brief. Here, it’s a pedagogical device; in a brief, boldfacing within a paragraph just looks like desperate hectoring.
As for large-scale signposting, good point headings are your best tool. We’re not talking about just any tag-style headings here, but “point headings”: full-sentence headings that, in a brief’s table of contents, appear between the topical headings “Argument” and “Conclusion.” In between are full sentences only, preferably typeset as sentences (not, please, with initial capitals or, worse, all caps). Use point headings the way the Office of the Solicitor General does.
Here’s an example supporting the idea that the federal courts of appeals have jurisdiction to review an agency rule:
I. The Clean Water Rule is subject to direct appellate review under the text of both S 1369(b)(1)(E) and S 1369(b)(1)(F).
II. Findlay’s reading of S 1369(b)(1) cannot be reconciled with the provision’s structure and purpose.
III. Legislative history supports the courts of appeals’ assertion of jurisdiction.
IV. When Congress authorizes direct review of agency action, an ambiguity about the scope of the authorization should be resolved in favor of greater breadth.
For more on this subject, see my September 2015 ABA Journal piece, “Pointed Advice on Point Headings.”
Avoid 'talk, talk, talk'
Good point headings serve as both writing tools (for you as the brief-writer) and navigational tools (for your readers). But even within the sections divided by point headings, guideposts can be important. At this level, three pitfalls pervade modern advocacy.
The most serious failing is just abruptly launching into a discussion. “Jenkins erroneously relies on McCallister v. Blaine.” Talk, talk, talk. No signposts at all. Readers feel as if they’re drifting rudderless at sea.
A second deficiency—barely a notch up the ladder from the bottom rung of unskillfulness—is inadequate signposting. “The court should deny Jenkins’s motion,” followed by “First, Jenkins is wrong about the holding in McCallister v. Blaine.” The advocate then lists several other arguments, with paragraphs beginning “Second,” “Third,” “Fourth,” and sometimes “Finally.” We’re given no preview of how many reasons there might be—perhaps because the advocate didn’t even know when embarking on the voyage.
An equally common but less incompetent failing is to say, “Jenkins is wrong in relying on McCallister v. Blaine for several reasons.” That’s a weak signpost. Many readers then start counting the reasons because the writer has failed to do it for them. There might be three or four. But sometimes, by the time you reach “For the foregoing reasons,” you realize there was really only one reason. Perhaps the writer suspected there might be several reasons but lost sight of the need to quantify.
What is missing is some smart guidance that keeps readers constantly aware of how the argument is progressing, even if that awareness isn’t quite conscious. “In ruling on this motion, this court is presented with three issues—any one of which is dispositive in Burton’s favor.” Then “First, …” It’s a simple but powerful format. Use it.
This idea of quantifying your points often escapes legal writers. If you’re trying to overcome a motion for summary judgment and you’re saying there are genuine issues of material fact, why not list them? How many issues are there? Five? That’s great. But list them, perhaps even in a bulleted list. Most lawyers don’t do it; they just talk about the various fact issues. Talk, talk, talk.
That’s mostly what judges see. And it’s exhausting.
Essentially, you’re trying to put your arguments in high relief. Don’t make the judge dig for them. A brief shouldn’t be an archeological dig. It should be the resulting museum exhibit.
Consider one more example. This time, though, I won’t give a “before” version. It’s just too tortuous—and torturous as well. The original passage, before editing, lacked the words in boldface. It was dull and mind-numbing. After reading the passage once, imagine it shorn of the boldface words:
Hickman’s sole allegation on laches is that Culver acted inequitably by allowing Hickman to build up sizable damages over many years. That allegation fails for two reasons. First, Culver could not recover monetary damages for the vast majority of Hickman’s sale of plastic-encapsulated products before February 23, 2018, when the act first made Hickman’s importation of foreign-made infringing products compensable in monetary damages. Second, after receiving notice of infringement, Hickman failed to mitigate its damages. In fact, it enhanced its sale of infringing products.
Little listings have power. They make ideas stickier. And the fact that you’ve taken the time to enumerate shows that you’ve thought through the problem. You haven’t just left unedited some stream-of-consciousness screed. You’ve imposed an overt structure on the prose and given spot-on directions.
Why do you win? Let us count the ways.
This story was originally published in the Feb/March 2021 issue of the ABA Journal under the headline: “The Art of Giving Directions: One who can draw a good map can probably write a good brief”