March 06, 2012 Articles

How to Make Technical Briefs Understandable for Generalist Judges

With some care and effort, a lawyer can reduce even the most complicated subject matter to something that generalist judges—and their clerks—can understand.

By Hugh S. Balsam and Patrick C. Gallagher

Legal briefs on technical subjects don’t have to be impenetrable. With some care and effort, a lawyer can reduce even the most complicated subject matter to something that generalist judges—and their clerks—can understand. Doing so is important because you want the judge to be able to write an opinion in your client’s favor, and a judge isn’t going to be comfortable doing so if it is impossible to understand the factual reasons why your client should win.

We know that many lawyers have spent years mastering the science that underlies their special area of practice. The poor judge reading your briefs, however, likely doesn’t share your passion for and mastery of, say, the biochemistry behind the development of pharmaceutical products. This disparity in knowledge can be a problem if your case involves—to continue with the same example—a drug patent. If you expect to prevail, you’re going to have to simplify the science in your brief. If you don’t, you risk losing the judge—and your case.

So, it should be clear from the start that your brief is not the place to show off the depths of your knowledge. Rather, it is the place to educate the judge, starting with the very basics, about the science that provides the context for the legal issues raised in your case. Judges and clerks, while adept at researching the law, are unlikely to research the science and technology independently. So your job is to give them all the knowledge they need to decide your case.

This article will help you do that. It is the product of 15 years experience distilling very dense scientific matter to produce clear and understandable briefs that even a grandmother—OK, a sharp grandmother—can comprehend. We have also talked to district judges and clerks to ascertain what they view as helpful—and unhelpful—in briefs in scientific and other technical subject areas.

While we refer frequently to patent cases here, this article is not limited to patent briefs. Rather, the tips and techniques we discuss apply equally in any case where the underlying subject matter is specialized and technical. Think medical malpractice or financial fraud, or even a case that involves a complicated statutory scheme. (Have you read through the Fair Credit Reporting Act lately?)

Our recommendations fall in a few general categories. The first is selection. Don’t pack your brief with everything including the kitchen sink and let the overwhelmed judge try to sort it out to figure out what’s important to your argument. Your job is to include only what’s important and, most critically, to leave out what isn’t. The second general subject area is organization. Just as every section needs to have a place and purpose, every paragraph and sentence do too. This sounds elementary, but it’s probably the hardest thing to do in a brief. The final general subject area is simplification. This is particularly important in briefs in technical areas, where the arguments, by their nature, are anything but simple. Your goal is to make them less dense, and thus, more inviting, for the judge to understand and ultimately rule in your favor.

A fourth recommendation is to give your brief (before you finalize it) to a lawyer who has no knowledge of the particular field you are writing about. If that lawyer can’t understand what you are arguing and why, then you need to go back and improve your work. One of the authors of this article has no scientific background, yet a major portion of his practice consists of writing and improving briefs in technical subject areas. Such nontechnical lawyers can be a significant asset to the briefing process.

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